Kerala High Court
Anilkumar vs State Of Kerala on 9 February, 2021
Equivalent citations: AIRONLINE 2021 KER 711
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942
WP(C).No.11846 OF 2015(S)
PETITIONER:
ANILKUMAR
AGED 48 YEARS
S/O.GOPALAKRISHNAN, THOZHUTHUNGAL HOUSE, NORTH
KUTHIYATHODU, CHALAKKA DESOM, N.PARAVUR TALUK,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.A.X.VARGHESE
SRI.A.V.JOJO
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT COLLECTOR
ERNAKULAM - 682 030.
3 THE ADDITIONAL TAHSILDAR
TALUK OFFICE, N.PARAVUR - 683 513.
4 THE VILLAGE OFFICER
MOOTHAKUNNAM, N.PARAVUR - 683 513.
5 MOOTHAKUNNAM COIR VYAVASAYA CO-OPERATIVE SOCIETY
LTD.NO.51
MOOTHAKUNNAM, N.PARAVUR, PIN - 683 513.
6 MS.HOMETECH AGENCIES
REPRESENTED BY ITS MANAGING PARTNER, T.G.SANTHOSH,
T.D.ROAD, ERNAKULAM, PIN - 682 035.
7 DEPUTY SUPERINTENDENT OF POLICE (VIGILANCE)
ERNAKULAM.
R1-R4 & R7 BY SENIOR GOVERNMENT PLEADER SRI.SURIN
GEORGE IPE
R5 BY SMT.JAYASREE MANOJ
R6 BY P.CHANDRASEKHAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-
08-2016, THE COURT ON 09-02-2021 DELIVERED THE FOLLOWING:
WP(C).No.11846 OF 2015(S) 2
JUDGMENT
Dated this the 9th day of February 2021 SHAJI P.CHALY,J This is a Public Interest Litigation filed by a resident of Ernakulam District seeking to quash Exhibit P3 order passed by the Additional Tahsildar, Paravur dated 15.7.2014, in regard to the mutation granted in favour of the 6 th respondent viz., M/s.Homotech Agencies, Ernakulam. According to the petitioner, a public property assigned in favour of the 5 th respondent viz., Moothakunnam Coir Vyavasaya Co-operative Society Ltd.No.51, North Paravur, hereinafter called, 'the Society', has transferred the property illegally to the 6th respondent by the 5th respondent and therefore, real public interest is involved in the subject matter enabling the petitioner, who is said to be a social activist, to espouse the public cause. It is admitted by the petitioner that as per Exhibit P1, an application was submitted by the Society seeking assignment of land and as per which Exhibit P2 assignment order was passed by the competent authority assigning an extent of 10 acres of property. As per the conditions incorporated in Exhibit P2, the alienation of land was strictly prohibited for a period of 10 years from the date of occupation or date of registry thereof, whichever is later.
2. Even going by the contentions raised by the petitioner, it is clear and WP(C).No.11846 OF 2015(S) 3 evident that the property was transferred in the year 2013 and the 6 th respondent has submitted the application for mutation under the Transfer of Registry Rules, 1966 on 30.9.2013. Therefore, the legal contention raised by the petitioner that the property was not alienable is not true or correct because Exhibit P2 patta issued by the competent authority permits the patta holder to transfer the same after a period of 10 years since the prohibition for alienation was only for that period.
3. Now looking at the prayers sought for by the petitioner, petitioner seeks to quash Exhibit P3 mutation granted by the Additional Tahsildar dated 15.7.2014. Which thus means the issuance of patta to the Society and the conditions with respect to the alienation for a period of 10 years alone is not under challenge in this writ petition. However, it is submitted by the learned counsel for petitioner that the property assigned in favour of the Society was a paddy land guided by the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008. Therefore, seeks to interfere with the mutation granted in favour of the 6th respondent - M/s.Hometech Agencies, Ernakulam.
4. A detailed counter affidavit is filed by the 6 th respondent refuting the allegations and emphasising the powers vested on the Society to transfer the property in question after the period of 10 years. It is also submitted that the Kerala Conservation of Paddy land and Wetland Act, 2008 has no application to the facts and circumstances of the case on hand.
WP(C).No.11846 OF 2015(S) 4
5. The 5th respondent has also filed a counter affidavit justifying the stand adopted by it in effecting the transfer, and along with the counter affidavit the Society has produced Exhibit R5(a) resolution No.2 dated 30.7.2004, whereby the property was decided to be alienated, which reads thus:
"MOOTHAKUNNAM COIR VYAVASAYA CO-OPERATIVE SOCIETY LIMITED No. 51, MOOTHAKUNNAM Meeting Resolution No. 2 Dated : 30.7.2004 The Society started functioning on 30.3.1954 after getting registered on
06.01.1954 and having a working capital of Rs.80 lakhs now has 1880 members. It is an establishment that gives occupation, Bonus, Holiday wages, Grant for machineries etc. to more than about 1000 employees in 135 traditional hand weaving industries and 100 machine-used hand weaving industries. Society got Rs. 6,65,230/- as share allocation, Rs. 6,94,129/- as loan towards working capital, Rs. 37,04,440/- as cash deposit from Ernakulam District Co-operative Bank. Due to the steep decrease in the weight of coconut husk from 85 Kgs. to 55 Kgs. out of 1000 coconut trees consequent to the infection in coconut plants and due to the non availability of price for the coir in proportion to the production expenditure, the Society is being incurred a loss of Rs.750/- approximately while producing one quintal Coir. According to that, as per the audit report for the year 2000-2001 the society has incurred a total loss of Rs. 79,24,862/08. Now about 100 employees alone are working in the society. Even though the cash credit account has not been operated for about 2 years, Rs.4 lakhs each has been increased every year in the item of interest. If such a situation existed, not only would it be impossible to give occupation even for the present workers but also there is a chance to lose the WP(C).No.11846 OF 2015(S) 5 movable and immovable assets of the Bank for years in the name of Bank loan. General body conducted serious discussion about it and it was decided to seek permission from the respected Director of Coir Development through the respected Coir Project Officer, North Paravur, for selling Moodachal property having a total extent of 10 acres comprising Sy. No. 3/3 in Kettuvallikkadu Muri, Moothakunnam Village, that is left without laying husk for about last 5 years and which is assigned to the society for laying husk as per Purchase Certificate in order to get over this situation subject to the condition that the loans from the government and District Co-operative Bank should be repaid.
Sd/-
Secretary. "
Therefore, respondents seek dismissal of the writ petition.
6. We have heard learned counsel for petitioner Sri.Jojo.A.V., learned Senior Government Pleader Sri.Surin George Ipe for respondent Nos.1 to 4 & 7, Smt.Jayashree Manoj learned counsel for respondent No.5, Sri.P.Chandrasekhar learned counsel for respondent No.6 and perused the pleadings and materials on record.
7. The elaborate discussion of the facts and law discussed above would make it clear that the question for consideration boils down two aspects ie 1) whether any public interest is involved in the writ petition as is claimed by the petitioner ? As we have stated earlier, the land was assigned in favour of the Society in the year 1968 by virtue of an application submitted by the Society WP(C).No.11846 OF 2015(S) 6 seeking assignment of the land. Among the restrictions, the fundamental restriction was in regard to the alienation of the assigned property for a period of 10 years from the prescriptions contained under Exhibit P2. Admittedly the period of 10 years was over in the year 1978. From the resolution produced by the Society dated 30.7.2004, it is clear that the Society has decided to alienate the property and it was according to the said decision alone, the property was transferred in favour of the 6th respondent. It is also evident from the proceedings dated 21.6.2006 viz., Exhibit R5(c) that a quotation for sale of the property in question was invited, sealed quotations were received and it was thereafter only the property was sold and that too in terms of the minutes of the committee viz., Exhibit R5(d) held in the year 2000.
8. Taking into account the aforesaid factual aspect, we have no reason to think that the property was sold by the Society against any public interest since as per the assignment granted by the competent authority itself the property was prevented from being alienated only for a period of 10 years. Thinking so, it is quite clear and evident that after a period of 10 years, whatever characteristics that was remaining with the property for a period of 10 years has vanished and the property is absolutely vested with the Society enabling the Society to alienate the same in accordance with the decision taken by the Society for the purpose of transfer of its assets and apparently in terms of the bye-laws.WP(C).No.11846 OF 2015(S) 7
9. It is also equally relevant to note that the Society has sold the property after taking appropriate decisions in order to meet up with its requirements and tide over difficult situations. Ultimately it is seen that as per Exhibit R5(d) decision taken in the year 2000, the Society has decided to sell off an extent of 9 Acre and 90 cents leaving apart 10 cents in the possession of a tenant under the Kerala Land Reforms Act. Thus to say, there is no public interest involved in the writ petition enabling the writ petitioner to file a Public Interest Litigation to protect any public property belonging to the State Government.
10. Now the second question is whether any manner of interference is warranted to Exhibit P3 mutation granted by the Additional Tahsildar in favour of the transferee ? The issue with respect to the mutation is guided by the provisions of the Transfer of Registry Rules, 1966. The said rule prescribes the modalities and the manner in which a transfer of registry is to be effected in favour of a title holder. Going through Exhibit P3, we are satisfied that the provisions of the Rules, 1966 was followed by the Additional Tahsildar and it was taking into account the relevant rules, the mutation was granted in favour of the purchaser viz., the 6th respondent. Moreover, as per the Transfer of Registry Rules, if any person was aggrieved on any mutation granted by the competent authority, statutory remedies are provided, however, petitioner has not raised any dispute with respect to the mutation effected before the competent appellate authority or the revisional authority in contemplation of WP(C).No.11846 OF 2015(S) 8 the Rules, 1966.
11. We are conscious of the fact that Exhibit P3 mutation was effected taking into account the factual, legal and other attendant circumstances and going through the pleadings and the documents produced by the petitioner, we are of the considered opinion that there is no sufficient materials before this Court to interfere with the mutation order issued by the Additional Tahsildar especially in view of the fact that the society was competent to transfer the property. Needless to say, a writ court while considering the issues raised in a writ petition need only to ascertain as to whether the statutory authority was performing himself in compliance with the statutory prescriptions and requirements. We are quite clear in our mind that the statutory authority has not violated any of the prescriptions contained under law and the required formalities were complied with.
12. Needless to say, petitioner has not made any case to interfere with Exhibit P3 order passed by the Additional Tahsildar exercising the power of discretionary jurisdiction conferred under Article 226 of the Constitution of India. The rest of the reliefs sought for are absolutely dependent upon the primary relief sought for to quash Exhibit P3 order of mutation, and since we have decided not to interfere with the mutation on the basis of the transfer made by the Society in accordance with law, petitioner is not entitled to get any such reliefs also.WP(C).No.11846 OF 2015(S) 9
Upshot of the discussion is that, writ petition fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE
WP(C).No.11846 OF 2015(S) 10
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 EXT.P1: TRUE COPY OF THE APPLICATION DTD.
5/1/1968.
EXHIBIT P2 EXT.P1(A): TRUE COPY OF THE ENGLISH
TRANSLATION OF EXHIBIT P1.
EXHIBIT P3 EXT.P2: TRUE COPY OF THE PATTA DTD.
27/2/1968.
EXHIBIT P4 EXT.P3: TRUE COPY OF THE ORDER DTD.
15/7/2014.
EXHIBIT P5 EXT.P.3(A): TRUE COPY OF THE ENGLISH
TRANSLATION OF EXHIBIT P3.
EXHIBIT P6 EXT.P4: TRUE COPY OF THE PETITION UNDER
SECTION 190(1) OF CR.P.C.
EXHIBIT P7 EXT.P4.(A): TRUE COPY OF THE ENGLISH
TRANSLATION OF EXHIBIT P4.
EXHIBIT P8 EXT.P5: TRUE COPY OF THE REPORT OF THE
VILLAGE OFFICER DTD. 20/8/2014.
EXHIBIT P9 EXT.P5(A): TRUE COPY OF THE ENGLISH
TRANSLATION OF EXHIBIT P5.
EXHIBIT P10 EXT.P6: TRUE COPY OF THE COMMUNICATION
DTD. 25/8/2014.
EXHIBIT P11 EXT.P6(A): TRUE COPY OF THE ENGLISH
TRANSLATION OF EXHIBIT P6.
RESPONDENTS' EXHIBITS
EXHIBIT R6(A) TRUE COPY OF THE GOVERNMENT ORDER DATED
5.8.1968
EXHIBIT R6(B) TRUE COPY OF THE RECEIPT DATED 6.4.2015
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT R5(A) A TRUE COPY OF THE MINUTES OF THE GENERAL
BODY MEETING OF THE 5TH RESPONDENT HELD
ON 30/7/2004 WITH ENGLISH TRANSLATION.
EXHIBIT R5(B) A TRUE COPY OF THE LETTER DATED 2.5.2005
WP(C).No.11846 OF 2015(S) 11
ISSUED BY THE PROJECT OFFICER, COIR,
NORTH PARAVUR, WITH ENGLISH TRANSLATION.
EXHIBIT R5(C) A TRUE COPY OF THE ADVERTISEMENT CARRIED
OUT IN MATHRUBHOOMI DAILY DATED 21.6.2006
EXHIBIT R5(D) A TRUE COPY OF THE RESOLUTION NO.87 TAKEN
BY THE 5TH RESPONDENT SOCIETY IN ITS
COMMITTEE MEETING HELD ON 31.3.2006 WITH
ENGLISH TRANSLATION.
EXHIBIT R5(E) A TRUE COPY OF THE RELEVANT PORTION
EXPENDITURE STATEMENT MAINTAINED BY THE
5TH RESPONDENT SOCIETY IN RESPECT OF THE
AMOUNT OBTAINED BY IT ON ACCOUNT OF THE
ALIENATION OF LAND TO THE 6TH RESPONDENT
WITH ENGLISH TRANSLATION.