Kerala High Court
A. Abdul Rasheed vs State Of Kerala on 30 April, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 20TH DAY OF JANUARY 2017/30TH POUSHA, 1938
WP(C).No. 2115 of 2017 (L)
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PETITIONER(S):
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1. A. ABDUL RASHEED,
AGED 52 YEARS, S/O ABOOBACKER,
AL-AMEEN MANZIL, MANAKKAD PO,
THIRUVANANTHAPURAM-695009.
2. MOHAMMED ABDUL RASHEED,
AGED 47 YEARS, S/O A.MOHAMMED,
THOOBA HOUSE, THOONGAMPARA,
KATTAKAD PO,
THIRUVANANTHAPURAM-685 5672.
BY ADVS.SRI.G.S.REGHUNATH
SRI.S.GOPAKUMAR
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY
PRINCIPAL SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001
2. THE DISTRICT COLLECTOR,
ALAPPUZHA-688001.
3. THE REVENUE DIVISIONAL OFFICER,
ALAPPUZHA-688001.
4. TAHSILDAR, AMBALAPPUZHA TALUK,
ALAPPUZHA-688524.
5. ALAPPUZHA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
ALAPPUZHA-688001.
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WP(C).No. 2115 of 2017 (L)
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6. THOMAS JOSEPH, CHAIRMAN,
ALLEPPEY MUNICIPALITY-688001.
7. VIJAYAKUMAR, COUNCILLOR,
ALLEPPEY MUNICIPALITY,
ALAPPUZHA-688001.
8. ILLIKKAL KUNJUMON, COUNCILLOR,
ALLEPPEY MUNICIPALITY,
ALAPPUZHA-688001.
9. PREM, COUNCILLOR,
ALLEPPEY MUNICIPALITY,
ALAPPUZHA-688001.
10. MOLLY JACOB, COUNCILLOR,
ALLEPPEY MUNICIPALITY,
ALAPPUZHA-688001
11. A.A.RAZAK, COUNCILLOR,
ALLEPPEY MUNICIPALITY,
ALAPPUZHA-688001.
R1 TO R4 BY GOVERNMENT PLEADER SRI.S.KANNAN
R5 BY ADV. SRI.AZAD BABU, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 20-01-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C).No. 2115 of 2017 (L)
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APPENDIX
PETITIONER(S)' EXHIBITS:
P1 : TRUE COPY OF THE SALE DEED NO. 2061/2012
DATED 30/4/2012.
P2 : TRUE COPY OF THE SALE DEED NO. 2062/2012
DATED 30/4/2012.
P3 : TRUE COPY OF THE PETITION DEED NO 538/1956
DATED 29/2/1956.
P4 : TRUE COPY OF THE COMPROMISE DECREE ON OS NO.348/2011
DATED 3/7/2012.
P5 : TRUE COPY OF THE COMPROMISE DECREE ON OS NO.348/2011
DATED 4/4/2012 OF THE SUB COURT, ALAPPUZHA.
P6 : TRUE COPY OF THE COPY OF THE JUDGEMENT IN
WPC 19570/13 DATED 30/10/2013 IN WPC NO.19570/2013(U).
P7 : TRUE COPY OF THE SURVEY PLAN.
P8 : TRUE COPY OF THE TAX RECEIPT DATED 1/4/2014.
P9 : TRUE COPY OF THE TAX RECEIPT DATED 1/4/2014.
P10 : TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED TO
1ST PETITIONER BY THE VILLAGE OFFICER, ALAPPUZHA WEST
DATED 6/1/2014.
P11 : TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE
2ND PETITIONER BY THE VILLAGE OFFICER, ALAPPUZHA WEST
DATED 6/1/2014.
P12 : TRUE COPY OF THE INFORMATION REGARDING THE PROPERTIES
PURCHASED BY THE 5TH RESPONDENT UNDER VARIOUS
DOCUMENTS AND THE AREA COVERED BY EACH DOCUMENT AND
DETAILS OF PERSONS WHO EXECUTED THE DOCUMENTS.
P13 : TRUE COPY OF THE APPLICATION DATED 10/3/2014
SUBMITTED BY THE PETITIONERS THROUGH ADVOCATE BEFORE
THE PUBLIC INFORMATION OFFICE, AMBALAPPUZHA TALUK
OFFICE.
P13(A) : TRUE COPY OF THE REPLY LETTER DATED 3/4/2014 TO
EXHIBIT -P3 SENT BY PUBLIC INFORMATION OFFICE,
AMBALAPPUZHA TALUK OFFICE.
P14 : TRUE COPY OF THE PETITION DATED 23/4/2013 SUBMITTED
BY THE PETITIONERS UNDER RIGHT TO INFORMATION ACT
BEFORE THE PUBLIC INFORMATION OFFICER, ALAPPUHA
MUNICIPALITY.
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WP(C).No. 2115 of 2017 (L)
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P14(A): TRUE COPY OF THE REPLY LETTER DATED 7/5/2013 TO
EXHIBIT P14.
P15 : TRUE COPY OF THE COMPLAINT DATED 17/10/2012.
P16 : TRUE COPY OF THE ORDER DATED 30/3/2013 PASSED BY
4TH RESPONDENT.
P17 : TRUE COPY OF THE PETITION DATED 19/8/2013 SUBMITTED
BEFORE THE 4TH RESPONDENT.
P18 : TRUE COPY OF THE ORDER DATED 17/2/2014 OF THE
ADDITIONAL TAHSILDAR, AMBALAPPUZHA.
P19 : TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT
DATED 20/2/2014.
P20 : TRUE COPY OF THE NOTICE DATED 2/6/2014 ISSUED BY THE
4TH RESPONDENT.
P21 : TRUE COPY OF THE NOTICE DATED 28/6/2014 ISSUED BY THE
4TH RESPONDENT.
P22 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY
4TH RESPONDENT IN WPC 17321/2014.
P23 : TRUE COPY OF THE JUDGMENT DATED 30/3/2016 IN
WPC.17321/2014.
P24 : TRUE COPY OF THE LETTER DATED 2/5/2016 SENT BY THE
4TH RESPONDENT TO DISTRICT COLLECTOR AND SUB
COLLECTOR.
P25 : TRUE COPY OF THE NOTICE NO N6-24619/2012
DATED 31/12/2016 ISSUED BY THE 4TH RESPONDENT.
P26 : TRUE COPY OF THE FIR IN CRIME NO. 1609/2013 OF
ALAPPUZHA POLICE STATION.
P27 : TRUE COPY OF THE MINUTES OF THE MEETING HELD ON
12/11/2008 BY 5TH RESPONDENT MUNICIPALITY.
P28 : TRUE COPY OF THE OBJECTION TO EXHIBIT -25 FILED BY
PETITIONERS DATED 16/1/2017 BEFORE THE 4TH RESPONDENT
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
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SHAJI P. CHALY, J.
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W.P.(C) No.2115 of 2017
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Dated this the 20th day of January, 2017
JUDGMENT
Petitioners are the owners in possession of 1 acre and 13 cents of property situated in Block No.53 of Re-survey Nos.81 and 81/9 of Alappuzha West Village, covered by Exts.P1 and P2 sale deeds dated 30.04.2012. The property so purchased by the petitioners were demarcated and located on the supervision of the District Survey Superintendent, as per the direction of this Court in W.P.(C) No.19570 of 2013, evident from Ext.P6 judgment. On the basis of the application submitted by the petitioners, property was mutated in accordance with the provisions of the Transfer of Registry Rules. Accordingly, petitioners have paid tax as the pattadars of the property, evident from Exts.P8 and P9. The possession certificates issued by the Village Officer are produced and marked as Exts.P10 and P11 respectively, dated 06.01.2014. The property is included in Thandapper Account Nos.24366 and 24367 of Alappuzha West Village.
W.P.(C) No.2115 of 2017 2
2. While so, 5th respondent Municipality attempted to trespass upon the properties purchased by the petitioners. Thereupon, boundary stones of the boundary of the petitioners properties were removed and attempted to annex a major portion of the petitioners' property to the properties purchased by the 5th respondent, from other parties to the partition deed. According to the petitioners, 5th respondent even fabricated documents and complaints were lodged against the then Secretary, under Sections 120B, 167, 456 and 468 of Indian Penal Code, by other persons, who purchased the property from other parties to Ext.P13 partition deed. It is also stated that the Municipality has purchased various parcels of the property situated in other survey numbers, and the same have no manner of connection with the properties mutated in favour of the petitioners. According to the petitioners, using political clout, 5th respondent and the office bearers of the 5th respondent are bent upon trespassing into the property of the petitioners which they purchased spending huge amounts. The 5th respondent attempted to influence respondents 1 to 4 and cancel the revenue records in the name of the petitioners by using their political influence.
W.P.(C) No.2115 of 2017 3
3. On 17.10.2012, 5th respondent has filed Ext.P15 complaint to cancel the revenue records in favour of the petitioners. According to the petitioners, the 4th respondent conducted an enquiry through the Village Officer, and passed Ext.P16 order dated 30.03.2013. It is also stated that, against the rejection of Ext.P16, no appeal was filed and therefore, it has become final and conclusive. However, yet another petition was filed, evident from Ext.P17, to which, Ext.P18 reply was issued by the 4th respondent, advising the 5th respondent to approach the civil court seeking appropriate remedies. It is also stated that, apparently, the 5th respondent influenced respondents 1 and 2, and obtained an order from the 6th respondent directing the Land Revenue Commissioner to cancel the transfer of registry, evident from Ext.P19. On receipt of Ext.P19, 4th respondent sent a notice to the petitioners and other persons, informing that he will be conducting a hearing on 25.06.2014 on the appeal submitted by the 5th respondent, evident from Ext.P20. The said date of hearing was adjourned to 11.07.2014 as per Ext.P21 notice dated 28.06.2014. It is contended that Exts.P20 and P21 notices are absolutely illegal and malafide and clear abuse of W.P.(C) No.2115 of 2017 4 the process of law. Having confronted with such a situation, W.P.(C) No.17321 of 2014 was filed before this Court seeking to quash Exts.P19 to P21. It is the contention of the petitioners that 4th respondent has filed Ext.P22 counter affidavit admitting that the petitioners purchased 45.96 Ares of property and the transfer of registry is effected by him in favour of the petitioners strictly according to the law and the Rules.
4. This Court, after considering the rival contentions, passed Ext.P23 judgment, whereby Exts.P19 to P21 were quashed with a rider that the quashing of the proceedings will not stand in the way of any authorities initiating any fresh proceedings after hearing the writ petitioners. Thereafter, Ext.P24, a communication dated 02.05.2016 was issued by the 4th respondent to the 2nd and 3rd respondents informing that the writ petition against the transfer of registry sought for by the 5th respondent is disposed of by the High Court and the stay was vacated. Thereafter, Ext.P25 dated 31.12.2016 is issued by the 4th respondent, directing the petitioners, 5th respondent and other interested parties to be present before the said authority on 13.01.2017, in order to consider the W.P.(C) No.2115 of 2017 5 application submitted by the 5th respondent seeking mutation of the property purchased by it. It is thus challenging Ext.P25, and seeking other related reliefs, this writ petition is filed.
5. Heard learned counsel for the petitioners, learned Government Pleader and the learned counsel appearing for the 5th respondent. In the nature of order I propose to pass, I do not intend to issue notice to respondents 6 to 11.
6. The primary question revolves round Ext.P16. According to the petitioners, Ext.P16 is a final order passed by the 4th respondent in the application submitted by the 5th respondent seeking mutation of certain parcels of properties purchased by it. On a perusal of Ext.P16, what I could gather is that the same is an intimation sent by the 4th respondent informing that, as a report is submitted by the Village Officer, that the properties purchased by the petitioners were transferred in their names as per the provisions of the Transfer of Registry Rules, and Thandapper Account Nos.24367 and 24366 were assigned. It can never be termed as a final order passed by the 4th respondent in the application submitted by the 5th respondent. As per Ext.P17, the 5th respondent has submitted an appeal to cancel the mutation granted in favour W.P.(C) No.2115 of 2017 6 of the petitioners, in which, petitioners, and yet another person were made parties. It is not discernible from Ext.P17, whether notices were issued by the 4th respondent in the appeal submitted by the 5th respondent. From Ext.P17, it is clear that the 5th respondent has submitted an appeal before the 4th respondent against the order of mutation effected by the Village Officer, which is apparently dated 19.08.2013. Obviously, Ext.P17 is filed after receipt of Ext.P16. However, as per Ext.P18 order dated 17.02.2014, it was informed by the 4th respondent that the Municipality is not entitled to get the mutation effected in respect of the properties covered by Thandapper Account Nos.24366, 24367 and 24587. Therefore, the 5th respondent was advised to approach appropriate civil court in order to resolve the dispute pending by and between 5th respondent and others.
7. Thereafter, Ext.P19 communication was received from the State Government dated 20.02.2014, wherein the Land Revenue Commissioner was directed to take necessary action to cancel the mutation in question and report the same to the Government. It was accordingly that Exts.P20 and P21 notices were issued by the 4th respondent and the same were W.P.(C) No.2115 of 2017 7 under challenge before this Court, and Ext.P23 judgment was rendered quashing the said proceedings, but leaving open the liberty of the 4th respondent to proceed in accordance with law. In my considered opinion, as apprehended by the petitioners, the present action pursuant to Ext.P25 notice is not in any way interfering with the quashing of the proceedings pursuant to Exts.P19 to P21. Same is a fresh notice issued by the 4th respondent, apparently, invoking the powers under the provisions of the Transfer of Registry Rules, on the basis of the appeal submitted by the 5th respondent seeking to cancel mutation of the properties granted in favour of the petitioners.
8. Fourth respondent is a statutory authority under the Transfer of Registry Rules, 1966, who is duty bound to consider any application filed by the owner of a property seeking to effect mutation of the property in accordance with the provisions of the Rules, and independently of any directives issued by any superior authority. The 4th respondent is vested with sufficient powers under the provisions of the aforesaid Rules to make due enquiries, hear the parties and take an independent decision in order to arrive at a conclusion as to whether the cancellation of transfer of registry as sought W.P.(C) No.2115 of 2017 8 for is to be granted or not. It was as a prelude to such exercise, Ext.P25 notice is issued by the 4th respondent in his status as the appellate authority against the mutation effected in favour of the petitioners.
9. In my considered opinion, as apprehended by the petitioners, Ext.P16 is never a final order passed nor Ext.P18 can never be construed as an order passed by the 4th respondent. Instead of exercising his powers as an appellate authority, 4th respondent has chosen to advise the 5th respondent to approach the civil court. The said communication can never be said to be a legalistic approach to the issue in question.
10. In that view of the matter, I am of the considered opinion, Ext.P25 is not suffering from any illegality, arbitrariness, or interfering with any judgment passed by this Court in respect of the issue in question, and therefore, I do not find any reason to interfere with Ext.P25 proceedings issued by the 4th respondent. Therefore, I decline the reliefs sought for by the petitioners in the writ petition. W.P.(C) No.2115 of 2017 9
11. However, I make it clear, as discussed above, the 4th respondent is a statutory authority exercising the function of a quasi-judicial authority and therefore, on the basis of the appeal submitted by the 5th respondent, an independent and impartial decision shall be entered into after making due enquiries, and providing necessary opportunity of hearing to the petitioners, 5th respondent and all others concerned. Anyhow, a final decision shall be attained within three months from the date of receipt of a copy of this judgment.
The writ petition is disposed of accordingly.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
20.01.2017