Kerala High Court
M/S.Riya Resorts And Properties(P)Ltd vs State Of Kerala
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
SATURDAY, THE 5TH DAYOF OCTOBER 2013/13TH ASWINA, 1935
WP(C).No. 28115 of 2006 (V)
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PETITIONER(S):
--------------------------
M/S.RIYA RESORTS AND PROPERTIES(P)LTD.,
GULAB BUILDING, GROUND FLOOR, 237,
PD MELLO ROAD, MUMBAI-400 001,
REPRESENTED BY ITS POWER OF ATTORNEY HOLDER,
K.JOY JOSEPH.
BY ADVS.SRI.M.P.SREEKRISHNAN
SMT.SHAHNA KARTHIKEYAN
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESEENTED BY THE SECRETARY TO GOVERNMENT (REVENUE),
SECRETARIAT, THIRUVANANTHAPURAM.
2. THE COMMISSIONER OF LAND REVENUE,
PUBLIC OFFICE BUILDINGS, MUSEUM JUNCTION,
THIRUVANANTHAPURAM-33.
3. THE DISTRICT COLLECTOR, COLLECTORATE, KOLLAM.
4. TAHSILDAR, PATHANAPURAM, PUNALUR.
5. THE VILLAGE OFFICER, THENMALA.
6. C.R.NAJEEB,
DISTRICT PANCHAYATH MEMBER, PATHANAPURAM.
* ADDL.R7 IMPLEASDED:
R7. HARRISONS MALAYALAM LTD.
REGD. OFFICE AT 24/1624, BRISTOW ROAD.
WILLINGTON ISLAND , KOCHI - 682 003.
(*ADDL.R7 IS IMPLEADED AS PER ORDER DATED 30.01.2012 IN IA.NO.1226/2012)
R1 TO R5 BY SPL.GOVT.PLEADER(REVENUE)SMT.SUSHEELA R.BHATT
R6 BY ADV. SRI.R.KRISHNA RAJ
ADDL. R7 BY ADV.SRI. BY E.K NANDAKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05-10-2013 ALONG WITH WPC.NO.8716/2010,THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
WPC.NO.28115/2006 (V)
APPENDIX
PETITIONER'S EXHIBITS:
P1: COPY OF SALE DEED NO.2840 DATED 23/06/05.
P2: COPY OF JUDGMENT DATED 31/01/06 IN WPC.NO.34177/05 OF THIS
HONOURABLE COURT.
P3: COPY OF ORDER OF THE 3RD RESPONDENT DATED 22/02/06.
P4: COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
P5: COPY OF PROCEEDINGS OF THE 2ND RESPONDENT DATED 21/04/06.
P6: COPY OF ORDER OF THE 1ST RESPONDENT DATED 16/12/05.
P7: COPY OF REPORT OF D.F.O.THENMALA DIVISION TO THE PETITIONER,
DATED 24/10/05.
P8: COPY OF ORDER OF THE 3RD RESPONDENT DTD. 10/11/03.
P9: COPY OF VALUATION STATEMENT.
P10: COPY OF THE MAHAZAR DATED 30/01/71.
P11: COPY OF NOTIFICATION DATED 23/06/88.
P12: COPY OF CERTIFICATE OF THE PATHANAPURAM TALUK OFFICE
DATED 3/05/91.
P13: COPY OF THANDAPER REGISTER INI THE NAME OF TR AND TEA.
P14: COPY OF CERTIFICATE ISSUED BY THE 4TH RESPONDENT
DATED 11/10/06.
P15: COPY OF REPORT DATED 2/05/06 ISSUED BY 4TH RESPONDENT.
P16: COPY OF CERTIFICATE DATED 17/10/06 ISSUED BY ADDL.TAHSILDAR,
PATHANAPURAM.
P17: COPY OF THE SALES CERTIFICATE NO.217439 OF 1064 ME AND
REGISTERED AS DOCUMENT NO.3/1065.
P18: COPY OF THE DOCUMENT NO.2743/1068 ME DATED 27/01/1893.
P19: COPY OF THE DOCUMENT NO.433/1083.
P20: COPY OF THE DOCUMENT OF 1343/1084.
Kss ..2/-
...2....
WPC.NO.28115/2006(V)
P21: COPY OF THE DOCUMENT WITH THE RELEVANT PART DEALING
WITH THENMALAI ESTATE.
P22: COPY OF THE REPORT DATED 10/06/06.
P23: COPY OF THE REPORT DATED 19/04/07 SENT BY THE DISTRICT
COLLECTOR, KOLLAM TO THE LAND REVENUE COMMISSIONER,
THIRUVANANTHAPURAM.
P24: COPY OF INFORMATION SUPPLIED TO THE PETITIONER.
P25: COPY OF CERTIFICATE ISSUED BY THE REGISTRAR OF COMPANIES,
INCORPORATING CHANGE OF NAME.
RESPONDENT'S EXHIBITS & ANNEXURES:
R1(a): COPY OF THE STAY ORDER DATED 30/11/2011IN O.P.3508/2011.
R1(b): COPY OF THE O.P.NO.3508/11 (WITHOUT ANNEXURES).
R1(c): COPY OF THE JUDGMENT DATED 28/02/2013 IN WPC.NO.14251/2012.
R1(d): G.O.(MS) NO.161/2013/RD DATED 25/04/2013 OF REVENUE (A) DEPT.
R1(e): COPY OF THE ORDER DATED 31/07/2012 PASSEDIN O.P.3508/2011.
R1(f): COPY OF THE ORDER DATED 10/10/2012 IN OP(C) NO.3508/2011.
R1(g): COPY OF THE JUDGMENT DATED 28/02/2013 IN WPC.NO.7379/12.
R2(a): COPY OF G.O.(RT) NO.3197/09/RD DATED 10/09/2009.
R2(b): COPY OF DILAPIDATED PORTION OF DOCUMENT NO.1600/1923.
R2(c): COPY OF LETTER DTD. 20/03/2007 ISSUED BY HARRISON MALAYALAM LTD
TO THE SUB REGISTRAR, KOLLAM.
R2(d): COPY OF RULES 4 THE SALE OF WASTE LAND ON THE TRAVANCORE
HILLS, 1865.
R6(a): COPY OF THE PROCEEDINGS NO.5020/R.
R6(b): COPY OF THE REPORT OF THE HIGH LEVEL COMMITTEE DATED
27/09/2007.
Kss ..3/-
...3....
WPC.NO.28115/2006 (V)
R6(c): COPY OF THE ORDER OF THE GOVERNMENT DATED 16/12/2005.
R6(d): COPY OF THE RELEVANT PAGES OF THE REPORT OF THE SIT
DATED 06/01/2010.
R6(e): COPY OF THE COUNTER AFFIDAVIT DATED 19/10/2007.
R6(f): COPY OF THE RELEVANT PAGES OF THE REPORT OF THE SIT
DATED 06/01/2010.
ANNEX.1: COPY OF THE DEED NO.2188/1916 OF KOLLAM REGISTRY AND
PHOTO COPY OF THE CIRCULAR DATED 31/10/2006.
ANNEX.II: COPY OF THANDAPER EXTRACT (TP NO.136) OF ARYANKAVU
VILLAGE IN PATHANAPURAM TALUK (4 SHEETS) AND COPY OF
THE LIST PREPARED BY THE VILLAGE OFFICER, ARYANKAVU
VILLAGE.
/TRUE COPY/
P.S.TOJUDGE
Kss
C.K. ABDUL REHIM, J.
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W.P.(c) No. 28115 OF 2006
&
W.P.(c) No. 8716 OF 2010
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DATED THIS THE 5th DAY OF OCTOBER, 2013.
J U D G M E N T
Since a common issued is involved in both these cases, pertaining to the transfer of registry of land originally belonged to the additional 7th respondent in W.P (c) No.28115/2006, both these writ petitions are considered together and disposed of through this common judgment.
2. W.P (c) No.8716/2010 is filed challenging Ext.P6 through which the Tahsildar, Pathanapuram had rejected the request of the petitioner to effect mutation in the revenue records, with respect to land comprised in Sy. No.385 of Aryankavu Village. Averments in the writ petition are that, 62 Acres of land comprised in Sy.No.385 of Aryankavu Village, which is a plantation, was purchased by the petitioner and her family members during year 2006. The documents relating to the transfer of the property are produced as Exts.P1 and P11 to P18. The purchase was made from its previous owners namely; Shoukath Ali, W.P.(c) Nos.28115/2006 & 8716/2010 -2- Nazeera, Seena, Najeera, Nazeer etc. In the revenue records the properties stood in the name of the previous owners. Exhibit P2 series and Ext.P20 series are copies of extracts of the "Tahadaper Register" and Basic Tax Receipts evidencing the above said fact. After purchase of the land the petitioner and her family members had obtained mutation effected with respect to 22 Acres. Exhibit P3 series & Ext.P9 series are the Basic Tax Receipts evidencing the mutation. But with respect to the balance extent of 40 Acres, applications for mutation were not allowed, despite Ext.P5, a favourable report forwarded by the Village officer. The Tahsildar had issued the impugned order (Ext.P6) stating that, the land in question is included in the total extent of 707.11 Acres mutated from the name of M/s. Malayalam Plantation Company and there is an order issued by the State Government restraining further mutations with respect to the said property of 707.11 Acres, comprised in Sy. No.385/3 and 385/4 of Aryankavu Village.
3. According to the petitioner there was no such order issued by the State Government prohibiting any W.P.(c) Nos.28115/2006 & 8716/2010 -3- mutation. The petitioner came to know that the Commissioner of Land Revenue had issued Ext.P7 directing all the District Collectors not to carry out any 'Pokkuvaravu' of lands possessed by M/s. Harrison Malayalam Plantations Ltd. until further orders. The reason stated in Ext.P7 is that there were allegations regarding large scale transfer of Revenue/Forest lands given on lease to M/s. Harrison Malayalam Plantations Ltd. and verifications regarding legality of such transactions are under consideration of the Government. It is stated that the Government have set up a 'High Level Committee' to consider the above aspects and its report is awaited. Contention of the petitioner is that the prohibition imposed through Ext.P7 will not affect the mutations requested by the petitioner and her family members, because the land in question was never in the possession of M/s. Harrison Malayalam Plantation Ltd. Further it is contended that effecting mutation under the Transfer of Registry Rules 1966 is only for the purpose of enabling collection of land revenue and it will not confer any title on the land.
W.P.(c) Nos.28115/2006 & 8716/2010 -4-
4. The petitioner relied on the decision in Kuriakose Elias Trust for Communication and Development V. Principal Secretary, Department of Revenue and others (2009 (2) KHC 602). It is held that the transfer of registry will not affect legal rights of any person in respect of any land. The question of legal right is always subject to adjudication by civil court. It is settled law that mutation entries are only for the purpose of collecting land revenue from the person in possession, but it does not confer any title to the land. Referring to procedure contemplated under Rule 3 (a) and Rule 10 of the Transfer of Registry Rules, this court held that any sale or other absolute transfer of land mentioned under Rule 3 (a) will fall under the category of cases which can be disposed of without any enquiry. Under such circumstances the petitioner is assailing Ext.P6 through which the request for effecting mutation was declined.
5. Facts contained in W.P (c) No.28115/2006 are identical in many respects. The petitioner company therein had purchased 83.61 Hecters (200.56 Acres) of land W.P.(c) Nos.28115/2006 & 8716/2010 -5- comprised in Sy. No.1/1, 1/2, 1/3, 2/4, 5, 6, 7, 8, 9, 10 and 11 of Thenmala Village from the the additional 7th respondent, by virtue of Ext.P1 sale deed. According to the petitioner the property originally belonged to M/s. Malayalam Plantation Limited, a company incorporated in England, who had purchased the land from M/s. Malayalam Rubber Produce Company Limited, as per sale deed No.1600 of 1098 ME. The Company M/s. Malayalam Plantation had changed its names to M/s. Harrison Malayalam Ltd. by virtue of an order of this court in CP No.13/2003. The petitioner applied for mutation of the land covered under Ext.P1 document. Since the request was not considered the petitioner had approached this court on an earlier occasion in W.P (c) No.34177/2005. In Ext.P2 judgment, dated 31-01-2006 a direction was issued to the District Collector to take a decision on the question of effecting mutation, in accordance with law. Ext.P3 is the consequential order issued. It is mentioned in Ext.P3 that the 6th respondent had submitted objections against effecting mutation stating that the land in question is W.P.(c) Nos.28115/2006 & 8716/2010 -6- Government owned forest land leased out by the erstwhile State Government of Tranvancore to the 7th respondent, in the year 1906, for a period of 99 years. The 6th respondent had made a complaint to the Government to resume the land, since the lease period had expired. It was also alleged that the land covered under Ext.P1 is part of the 252 Acres of land declared as surplus land to be surrendered by the 7th respondent, as per proceedings of the Taluk Land Board, Vythri, dated 02-07-1982. In Ext.P3 the District Collector had mentioned about the directions received from the Chief Minister on the representation of the 6th respondent. In Ext.P3 it is observed that there is no mention in Document No.1600/1098ME as to whether M/s. Malayalam Rubber Produce Company holds absolute title over the property. Therefore the application to get the land mutated, was rejected. However, it was observed that, since the matter is under enquiry by the 'High Level Committee' constituted by the Government, suitable action will be taken in due course after getting directions from the Government in the matter. The operative portion of Ext.P3 order mentioning the W.P.(c) Nos.28115/2006 & 8716/2010 -7- reasons is re-produced hereunder;
"(1) Clear records proving title of Malayalam Rubber and Produce Co. Ltd, London over the disputed lands.
(2) details of land sold from each survey and sub division numbers with its well defined boundaries. (3) details of lands ordered to be surrendered by Harrison Malayalam Ltd., Kochi as surplus land under KLR Act, it will not be possible to consider the request of M/s. Riya Resorts and Properties Private Ltd., Mumbai to mutate the 206.51 acres of land in question in their name. Therefore the application dated 13-06-2005 filed by M/s. Riya Resorts and Properties Private Ltd. to got the properties mentioned above mutated in their name is rejected.
However, since the above matters are being enquired into in detail by the High Level Committee constituted by the Government as per G.O (Rt) No.6562/05/RD dated 16-12-2005, suitable action will be taken in due course after getting directions from the Government in this matter."
6. Aggrieved by Ext.P3 the petitioner had preferred appeal before the Commissioner of Land Revenue, the 2nd respondent. But the order of the District Collector was W.P.(c) Nos.28115/2006 & 8716/2010 -8- confirmed observing that there is lack of clarity regarding transfer of ownership and saleable rights over the land in question. It was reiterated that the High Level Committee constituted by the Government was assigned with the responsibility to conduct detailed enquiry with special reference to the lands given to M/s. Harrison Malayalam Ltd. Any decision on the petition for mutation can be taken only after final report of the High Level Committee is obtained.
7. Aggrieved by Exts.P3 and P5 the present writ petition is filed. The petitioner had produced various documents to substantiate that the property remains transferred into the name of the 7th respondent in the revenue records, and that the 7th respondent Company has got absolute title over the property. Pleadings in the writ petition and in the reply affidavit are specifically to the effect that the land covered under Ext.P1 is not part of the land leased out by the erstwhile Government of the State of Travancore. Documents relating to a series of transactions through which the 7th respondent derived title over the W.P.(c) Nos.28115/2006 & 8716/2010 -9- property, are produced to substantiate the claim.
8. The reason for denial of the mutation, mentioned in both these cases are that, the predecessor of the 7th respondent company was not having absolute title or ownership over the land, and hence the transfer of registry effected in favour of the 7th respondent and all the subsequent transfers/mutations are liable to be cancelled. The Tahsildar as well as the Commissioner of Land Revenue had filed counter affidavits in both the cases. A detailed additional counter affidavit is filed by the State Government in both these cases. Averments in brief are that, M/s. Malayalam Plantation Limited is a sterling company incorporated in England, as an Indian company, in the year 1971. The said Company was prohibited from possessing any plantations for agriculture within the territory of India, by virtue of the Foreign Exchange Regulation Act, 1973. There was no permission obtained for any such activities as contemplated under the said Act. Hence the transfer of the holdings, rights, title or interest vested on the 7th respondent was a nullity in law. Since provisions of the W.P.(c) Nos.28115/2006 & 8716/2010 -10- Foreign Exchange Regulation Act came into force with effect from 04-01-1974, the holding claimed is a nullity and cannot be recognized by any court of law. It is further contended that the holding of the land by the foreign company was in gross violation of the Kerala Land Reforms Act. The property belongs to the State of Kerala, as successor of the erstwhile State Governments of Travancore, Malabar and Cochin. The proceedings initiated by the Taluk Land Board was based on a fraudulent and concocted documents and the predecessor in interest of the petitioners have obtained favourable orders by placing reliance on invalid documents on a coercive manner. According to the State Government the entire proceedings of the Taluk Land Board are challenged before this court by invoking jurisdiction under Article 227 and 226, by filing O.P No.3508/2011 and this court had stayed all further proceedings of the Taluk Land Board, as evidenced from Ext.R3 (a). It is contended that the foreign company claimed title over more than 59000 Acres of land and continued in possession as if they are legally entitled to carry out W.P.(c) Nos.28115/2006 & 8716/2010 -11- plantation activities within the State. Since validity of the title claimed by the said company is not established, the documents of transfer or mutation, if any executed will not confer title on the present petitioners, is the contention.
9. In the counter affidavit filed on behalf of the Commissioner of Land Revenue in WP(C).No.28115/2006, it is conceded that mutation was effected in favour of the 7th respondent with respect to the land covered under document No. 1600/1098 M.E. But the mutation effected was not in order, because no details regarding title of the vendor, M/s. Malayalam Rubber and Produce Company was discernible. Hence it is stated that the mutation effected in favour of the 7th respondent is also likely to be cancelled. It is further stated that the land owned by the erstwhile Travancore State Government was leased out to certain companies and therefore it is necessary to ascertain as to how absolute title of such land was transferred in favour of M/s. Malayalam Rubber and Produce Company Limited. If absolute title over the property cannot be proved, the mutation already effected in favour of M/s. W.P.(c) Nos.28115/2006 & 8716/2010 -12- Harrisons Malayalam Limited itself will have to be cancelled, is the contention. However it is conceded that, transaction in favour of the petitioner company is not with respect to land held by the additional 7th respondent on lease. It is stated that no land was given to the 7th respondent on lease basis. But it is alleged that the land which was leased out by the erstwhile Travancore State Government for which free hold right was later granted to Mr. Keir and others, have reached the hands of M/s. Malayalam Produce Company, London, from whom the 7th respondent had purchased the property. But how the absolute title was transferred with respect to the free hold land is yet to be proved. It is also contended that, the fact that various extents of land was acquired from the 7th respondent for different purposes like Kallada Irrigation Project, and that payments of compensation was made to them, will not by itself confer absolute title with respect to the land in question.
10. Detailed reply affidavit was filed in WP(C). No.28115/2006, producing various documents to illustrate W.P.(c) Nos.28115/2006 & 8716/2010 -13- that the land purchased by the petitioner company is not part of any land leased out by the erstwhile Travancore State Government. A rejoinder affidavit is seen filed by the Commissioner Land Revenue disputing correctness of those documents.
11. Before entering upon any adjudication on the rival contentions, it is beneficial to have a scanning of the relevant provisions in the Transfer of Registry Rules, 1966. Rule 3 deals with different procedure to be followed in effecting the transfer of registry, under different circumstances. Sub Rule (a) of Rule 3 deals with the transfer of registry on voluntarily transfer of tile. Rule 3(b) deals with transfer by decrees of civil court or by revenue sales. Rule 3(c) deals with transfer due to succession. In the case at hand the requests for mutation was made based on voluntary transfer of title. Therefore the procedure to be followed is the one contemplated under Rule 3(a). It provides that, in all cases of absolute transfer of title by way of sale, partition, gift, agreement etc. the party should record their consent for the transfer of the registry and an W.P.(c) Nos.28115/2006 & 8716/2010 -14- application should be made before the Registering Officer along with the document. The application containing copy of document should be certified by the Registering Officer. The said application certified by the Registering Officer should be produced before the village officer to effect the transfer of registry. Rule 7 provides that the Village Officer should prepare a statement and shall forward the same to the concerned Tahsildar within 15 days of the receipt of the application. Such reports received by the Tahsildar shall be entered in the Register kept for the said purpose. Rule 10 provides the procedure to be followed in the case of applications with respect to uncontested cases. Note attached to Rule 10 specifies that, cases of sale and other absolute transfers mentioned under Rule 3(a) will fall under the category of uncontested cases and in such cases no enquiry is necessary and it should be disposed of by the Deputy Tahsildar of the Taluk concerned. In all contested cases the matter need to be considered after due enquiry to be conducted.
W.P.(c) Nos.28115/2006 & 8716/2010 -15-
12. The next aspect which needs consideration is the effect of the mutation or the transfer of registry. Sri. M.C. Sen learned Senior Counsel appearing on behalf of the petitioner in WP(C). No.28115/2006 had drawn attention of this court to the decision of the hon'ble apex court. In Balwant Singh and another vs. Daulat Singh and others (1997 (7) SCC 137) it is held that, mutation of any property in the revenue records will neither create nor extinguish title on the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Mutation will not affect rights of any parties conducting sale or it will not affect any civil litigation claiming title over the property. In another decision in Surajkhan and others vs. Financial Commissioner and others (2007 (6) SCC
186) the hon'ble apex court held that, the entry in 'jamabandi' does not confer any title, which can only be decided by civil court. In Rajinder Singh vs. State of Jammu and Kashmir ( 2008 (9) SCC 368) it was held by the hon'ble Supreme Court that entry in the revenue W.P.(c) Nos.28115/2006 & 8716/2010 -16- records is only for fiscal purpose. Substantive rights of title and ownership of contesting claimants can be decided only by competent civil court in appropriate proceedings. This court had followed the above proposition in the case of Kuriakose Elias Trust's case (cited supra). In yet another decision of this court in Thulasibhai vs. State of Kerala (2010 (4) KLT 215) it is held that pendency of revenue recovery proceedings is not a ground to deny the request for mutation, because it will not have any impact on the revenue recovery proceedings or it will not improve the title of the purchaser.
13. From the legal position remaining settled, it is evident that mutation if any effected under the Transfer of Registry Rules is mainly to enable fiscal purpose of collecting land tax . Such entries will not confer any title or right over the land, if the same is in dispute or in any manner defective. Rule 16 of the Transfer of Registry Rules specifically provides that, the summary enquiry and decision to be taken on the request for mutation is only an arrangement for fiscal purposes and will not affect the W.P.(c) Nos.28115/2006 & 8716/2010 -17- legal rights of any person in respect of the land covered by such decisions. The question of legal rights is also subject to adjudication by the civil court and the 'patta' will be revised from time to time in accordance with the judicial decisions. Hence it is clear that if the transfer of registry is permitted in the cases at hand, that will not confer any title or right upon the petitioners, if the title is otherwise suffering from any inherent deficiency, either in the case of the petitioner or in the case of the predecessor in interest who had transferred the ownership. It is evident that the transfer of registry was applied on the basis of sale deeds executed between the parties to the transaction who had consented for the transfer of registry. Therefore, undisputedly it is a case falling within the purview of Rule 3
(a) and it has to be dealt with as uncontested case, as per the note attached to Rule 10.
14. From the impugned orders it is evident that the transfer of registry was declined expressing doubt regarding absolute title and ownership of the predecessor in interest who held the property at some point of time. W.P.(c) Nos.28115/2006 & 8716/2010 -18- Question remains as to whether the transfer of registry can be denied on the basis of any doubt regarding absolute title of the predecessor in interest of the vendor. Admittedly, in both the cases mutations were effected in favour of the predecessors in interest by way of transfer of registry, allowed long back. Contentions of the State Government as well as the party respondents are to the effect that there is lack of absolute transfer of the title over the land and since the Government is claiming title over the property, it is justified on the part of the revenue authorities in declining the transfer of registry.
15. On the basis of the contention that the Government vests title over the properties, question assumes importance as to whether the denial to effect mutation can be sustained or not. In this regard, learned Special Government Pleader as well as counsel appearing for the party respondents had drawn attention of this court to a Division Bench judgment of this court in W.P.(C). No.14251 of 2012 and connected cases, dated 28.02.2013. One of the petitioners in the said cases, is the person who W.P.(c) Nos.28115/2006 & 8716/2010 -19- impleaded as additional respondent in the present writ petitions. Those writ petitions were filed with an allegation that the 7th respondent company as well as its transferees, including Gospel for Asia (GFA), are holding lands which are essentially Government lands, and that the authorities concerned are not taking any action under the Land Conservancy Act. This Court noticed that the proceedings before the Thaluk Land Board was remanded for reconsideration on some of the issues covered in the cealing proceedings. This court had taken note of the fact that OP (C) No.3508/2011 was filed invoking Article 228 and 227, with the pleading that the proceedings pending before the Thaluk Land Board should be called for to this Court, since question relating to interpretation of the Constitution arises. It was contended that the issue relating to the entire transactions under which the 7th respondent and its transferees are claiming right over the land, are executed in violation of the Constitution and various other statues including FERA, FEMA and orders of the Land Board. Government took a stand that the properties in the W.P.(c) Nos.28115/2006 & 8716/2010 -20- possession of the 7th respondent are Government lands or lands which are recoverable under the provisions of the Land Conservancy Act. This Court observed that the competent authority under the Land Conservancy Act has to decide the question as to whether there exists any ground to proceed under the Act. However, judgment in WP(C) No.6258 of 2010 as well as order in R.P.No.676 of 2011 in WP(C) No.32628 of 2007 were taken note of to hold that the proceedings under the Land Conservancy Act, with respect to land held by GFA should be deferred till proper identification of the land. This Court observed that, even in the Land Board Proceedings in the cealing case, if the Government would have raised contention that the properties are Government lands, it would have been within the jurisdiction of any competent authority to initiate action. Ultimately it was observed that, if the Government have a case that the paramount title of the land vests with them, they will be at liberty to initiate action in accordance with law. This Court made it clear that if and when any competent authority under the Land Conservancy Act W.P.(c) Nos.28115/2006 & 8716/2010 -21- initiate any such proceedings, it would be appropriate for the company to contest the same on the question of jurisdictional issue. This Court refrained from adjudicating the question of jurisdictional issue relating to any such proceedings, observing that it will be highly premature and will be prejudging matters which the statutory authorities have to decide. The said Writ Petition was disposed of giving opportunity to the authority concerned to take steps under the Land Conservancy Act within a period of two months.
16. As observed above, in the matter of land transfered to Gospel for Asia by the 7th respondent, various litigations were pending before this Court. A batch of review petitions were disposed of through a common order dated 06.01.2004. Actions initiated against the GFA was quashed repelling the contention that the Government vests title over the property in question. There is an observation made by a Division Bench of this Court in the said judgment that, as regards the report of the `High Level Committee', the Court is of the view that the same has no evidentiary W.P.(c) Nos.28115/2006 & 8716/2010 -22- value, because such a report was prepared without hearing the GFA.
17. It is now brought to the notice of this Court that O.P(C)No.3508 of 2011 filed by the Government was disposed of through a common Judgment along with O.P(C). No.2989 of 2011 (judgment dated 09.09.2013). In the said judgment this court found that there arise no substantial question of law requiring interpretation of the Constitution, with respect to the proceedings pending before the Thaluk Land Board. It was observed that if the State Government has any clear assertion that the provisions of any statute is violated as regards the title of the properties in question, it may have to invoke appropriate proceedings under the relevant statute. If any questions of public policy and public interest are involved, bare minimum is that appropriate action in accordance with rule of law has to follow. There cannot be any shortcut by invoking supervisory jurisdiction under Article 227 or under Article 228, is the findings.
W.P.(c) Nos.28115/2006 & 8716/2010 -23-
18. From the judicial decisions of this court, enumerated in the forgoing paragraphs, it is clearly evident that despite attempting various litigations and raising varioius contentions challenging title of the 7th respondent company and the transfers made by them, the Government could not initiate any statutory proceedings under any of the relevant laws for recovery of the land or to get it established that Government holds title over the property. Legal precedents with respect to the Transfer of Registry Rules remains settled to the effect that, with respect to a transfer of title by consent of parties, mutation cannot be rejected. Further, it is evident that mutation effected will not affect the title or rights with respect to any property. Therefore, unless the Government could establish with concrete evidence based on materials that title of the property in question vests with the Government, they cannot be allowed to refuse or reject the request for mutation, based on transfer of title by consent. In both these cases the request for mutation is rejected on the basis that the Government have got a claim that the 7th W.P.(c) Nos.28115/2006 & 8716/2010 -24- respondent company and its transferees were not holding valid title. But such an allegation by itself is not sufficient to deny the mutation requested. This is especially because of the fact that the properties in question stands already mutated in the name of the 7th respondent company and its transferees, as per the revenue records. Unless and until the Government establishes through methods acceptable to law that the Government is title holder of the property and there is no absolute transfer of title by virtue of the documents relating to transaction of the properties, the denial of mutation cannot be justified and sustained. It is also not justifiable on the part of competent authorities to keep the matter indefinitely pending on the basis that an enquiry was ordered by the Government by constituting a `High Level Committee'. The Special Government Pleader is not in a position to point out that any proceedings under the Land Conservancy Act was initiated, despite liberty granted by this court.
19. Under the above mentioned circumstances, these writ petitions are allowed. The impugned orders declining W.P.(c) Nos.28115/2006 & 8716/2010 -25- to effect the mutations requested are hereby quashed. The Tahasildars concerned are directed to reconsider the applications and to order mutation/transfer of registry, if the requirement under Rule 3(a) with respect to execution of the documents of transfer is satisfied. The needful steps in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. Conditions if any stipulated in the interim orders passed in these writ petitions will stand cancelled and consequential steps in this regard shall be taken by the appropriate authorities.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG/Pmn/DSV True copy P.A to Judge