Kerala High Court
P.C.Jacob vs The Village Officer on 4 January, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940
WP(C).No. 125 of 2019
PETITIONER/S:
P.C.JACOB
AGED 64 YEARS
S/O.P.C.CHACKO, PINAKKADU HOUSE, P.J ANTONY ROAD,
ERNAKULAM.
BY ADVS.
SRI.K.R.VINOD
SMT.M.S.LETHA
RESPONDENT/S:
1 THE VILLAGE OFFICER,
ELAMKULAM VILLAGE, ERNAKULAM-682031.
2 THE TAHSILDAR,
KANAYANNUR TALUK, ERNAKULAM-682031.
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS, J.
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W.P.(C).No. 125 of 2019
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Dated this the 4th day of January, 2019
JUDGMENT
The prayers in the above Writ Petition (Civil) are as follows:
"(i) to issue a writ of mandamus against the 1 st respondent directing him to issue ROR Certificate of the landed property having the extent of 33 cents in Sy.No. 38/1/2 of Elamkulam Village covered by Document No.2109/1109 ME of SRO Ernakulam, originally owned by I.C.Pailey the deceased father of the Original judgment Debtor to the petitioner.
ii) To issue any other writ or direction appropriate in the circumstances of this case."
2. Heard Sri. K.R.Vinod, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned counsel for the petitioner appearing for the respondents.
3. It is stated that the petitioner is the decree holder in original suit, O.S.No.171/2015 on the file of the Sub Court, Ernakulam. The said suit was instituted seeking prayer for a decree of specific performance of contract with respect to the property having an extent of 3 cents in Sy.No. 38/1/2 of Elamkulam Village, Kanayannur taluk, Ernakulam revenue district. In view of the decree granted by the Sub Court concerned, the petitioner has filed application for executing the sale deed through the process of court. It is stated that after the approval of the draft sale deed submitted by the petitioner, the court below has now directed the petitioner to take steps for registration of the approved draft sale deed. That W.P.(C)125/19 - : 3 :-
accordingly the petitioner has approached the 1 st respondent Village Officer praying for issuance of ROR certificate of the abovesaid property covered Ext.P-2, as ROR certificate is now insisted by the registration officials concerned for completing the process of registration of the draft sale deed duly approved by the court below concerned. The complaint of the petitioner is that though the petitioner has submitted Ext.P-3 application dated 18.12.2018 before the respondent Village Officer, for issuance of ROR certificate, the said certificate is not being issued by the 1 st respondent on the ground that the petitioner has to necessarily produce basic tax receipt in respect of the abovesaid property and that the said decision of the 1 st respondent has been duly endorsed on the reverse of the last page of Ext.P-3 application. Though the petitioner has not produced the said endorsement, Sri.K.R.Vinod, learned counsel appearing for the petitioner has made available the original of the said endorsement made by the respondent Village Officer on 18.12.2018 for the perusal of this Court, which reads as follows:
"To പ . സ . ജ കബ , പപനകകട (H).
അജപക വസ വ ന കര അടച രസ ത ഹക രകക യ ജ ഷ ,
സലപര ജ കധന നടത ROR സർട ഫ കറ അന വദ ക ന കണ.
Sd/-
28.12.2018
Village Officer
Ernakulam."
W.P.(C)125/19 - : 4 :-
4. The petitioner would point out that the registered land holder of the said property is the defendant in the suit and he is not co-operating with the petitioner to make available the copy of the basic land tax receipt. In the light of these aspects, the petitioner pays that direction may be given to the Village Officer to consider and grant the ROR certificate to the petitioner in respect of the property concerned without insisting on the production of the basic land tax receipt.
5. Having heard both sides, this Court is of the considered view that there is substance in the contention raised by Sri.K.R.Vinod, learned counsel appearing for the petitioner that the registered land holder of the property concerned, who is none other than the defendant in the suit, is not co-operating with the petitioner and that he is not handing over the basic land tax receipt issued to him by the 1st respondent Village Officer.
6. The fact that the defendant in the suit, who is the registered land holder is at loggerheads with the petitioner, is evident from the fact that the petitioner has been constrained to initiate litigative proceedings against the said party for enforcement of the contract of sale of the property concerned. Therefore, the impugned insistence made by the respondent Village Officer that the petitioner himself should produce the basic land tax receipt in respect of the W.P.(C)125/19 - : 5 :-
property concerned is rather an impossible task for the petitioner. Moreover, it appears that the authority, who is accepting land tax and issuing receipts in that regard, is none other than the 1 st respondent Village Officer. If that be so, this Court fails to understand as to why the 1st respondent is not taking the reasonable course of action in verifying his own records as to the land tax paid by the registered land holder in respect of the property concerned. Hence it is only to be held that the stand taken by the 1st respondent Village Officer is arbitrary and unreasonable. In that view of the matter, it is ordered that the impugned decision of the 1 st respondent Village Officer rendered by him on 28.12.2018 as aforestated compelling the petitioner to produce the land tax receipt of the property concerned, is set aside and rescinded. It is for the 1 st respondent to verify his own records to satisfy about the aspects regarding basic land tax paid in respect of the property concerned and as to who is the registered land holder, etc. Even if the registered land holder, who is the defendant in the suit, has not paid the land tax for the periods in question, the same cannot be a ground for refusal of ROR certificate in respect of the abovesaid property to the petitioner as sought for in Ext.P-3. It is also pointed out that the petitioner has already made available the latest encumbrance certificate of the property concerned. The 1 st W.P.(C)125/19 - : 6 :-
respondent may conduct appropriate enquiries and then after granting reasonable opportunity to the petitioner will finalise action on the request made by the petitioner for grant of ROR certificate without any further delay, at any rate, within a period of one month from the date of production of a certified copy of this judgment.
7. It is also to be noted that this Court has already held in the judgment in the case in Synudheen v. State of Kerala, reported in 2013 (1) KLT 221 that so long as the provisions of the Registration Act and the Registration Rules have not been amended so as to compulsorily insist for production of ROR certificate before it could be registered by the registration officials as per the Act, the same cannot be insisted for a compulsorily basis and at best it can only be optional for the party concerned to produce such ROR certificate. This Court has categorically held in the abovesaid decision in Synudheen's case supra that since the provisions of the Registration Act and the Rules have not been amended so as to incorporate such a mandatory condition insisting for production of ROR certificate before the deeds could be registered by the registration officials, the registration officials cannot refuse to register the same on the mere ground that the petitioner has not produced the ROR certificate in respect of the property concerned. But it is certainly optional for the W.P.(C)125/19 - : 7 :-
party concerned to seek such certificate for the sake of completion of formalities. But non-production of such certificate cannot be the legal basis for the registration officials to refuse the request for registration. This Court has held that though the preparation of Record of Right certificate in respect of every item of land may be a laudable idea, in many cases it may require further verification and a party cannot be told that his property cannot be sold unless steps for preparing ROR is completed and no intending purchaser will wait indefinitely, etc. and that the property owners may have to transfer their property for many urgent purposes such as for purchase of another property, to meet the liability towards loan, for meeting the expenses for education of children, for meeting the marriage expenses of children, etc. Hence it was held therein that so long as stringent condition for production of ROR certificate is not incorporated as a requisite condition by amendment of the Registration Act and the Rules framed thereunder the registration officials of the Government in exercise of the executive powers cannot insist that deeds will not be registered without production of ROR certificate etc. It will be profitable to refer to paragraphs 6, 12 and 13 of the abovesaid decision in Synudheen's case supra, which read as follows:
"6. In the counter affidavit filed on behalf of the first respondent, Exts.Rl(a) and Rl(b) Government Orders have been produced. The same W.P.(C)125/19 - : 8 :-
governs the e-District Project launched in Kerala under the National e- governance Plan. It is stated that a modified programme, viz., National Land Records Modernisation Programme (NLRNP) has been formulated by the Government of India. The same is being implemented in the State through three departments, viz. Revenue Department, Survey and Land Records Department and Registration Department. The computerisation of Land Records is one of the major components of the scheme. The Department of Land Revenue has developed a software, viz., Revenue Land Information System (RELIS) for online mutation/transfer of registry with the support of National Informatic Centre. Sanction was accorded by the Government as per Ext.R1(c) for implementing the system in Palakkad District on a pilot basis and the Government has amended the Transfer of Registry Rules and insisted Form IB along with applications for effecting transfer of registry.
xxx xxx xxx
12. Evidently, the Registration Rules have not been amended to have any such system that before registration of the document Record of Right has to be obtained or produced. Therefore, it can be seen that the parties cannot be subjected to such compulsion to obtain Record of Right as a pre condition for registration. It can only be optional for the party concerned. Otherwise, it will interfere with the right of a property owner to transfer his property in terms of his requirement. Of course, the preparation of Record of Right in respect of every item of land may be a laudable idea. But in many cases it may require further verification also and a party cannot be told that his property cannot be sold unless steps for preparing Record of Right is completed. No intending purchaser will wait indefinitely also. The property owners may have to transfer of their property for many urgent purposes such as for purchase of another property; to meet the liability towards loan, if any taken; for meeting the expenses for education of children; for meeting the marriage expenses of children and the like. Therefore, all those aspects will have to be considered, as rightly pointed out by the learned counsel for the petitioners. The hardship of the parties should be avoided also. If stringent conditions not required under the Registration Act and Rules are imposed and Record of Right is required for a transfer, that too as a pre condition, then the system will not work at all and the matter will get unduly delayed.
13. Therefore, as far as Ext.P9 is concerned, I am of the view that the petitioners' contentions are well founded. The Tahsildar cannot decide on the validity of a document and the title of a previous owner. In fact, under R.16 of the Transfer of Registry Rules, it is made clear that mutation effected will not affect the legal right of any true owner. Therefore, as far as the title of the petitioners and the previous owners are concerned, the Tahsildar cannot sit in appeal over the documents itself. The prior documents have been duly registered and they have not been set aside in any civil proceedings. Therefore, they can be acted upon and no objection can be taken on the basis of the alleged incompetence."
8. In the light of the abovesaid categoric declaration of law made by this Court in Synudheen's case supra, it is ordered and declared that production of ROR certificate is only optional and W.P.(C)125/19 - : 9 :-
cannot be made mandatory and the registration officials concerned will not have jurisdiction to refuse registration on the mere ground that the parties like the petitioner has not produced the ROR certificate in respect of the property concerned. Accordingly, it is ordered that the registration officials concerned will have to register the document concerned on its presentation, if it is otherwise in order.
With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
W.P.(C)125/19 - : 10 :-
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE COPY OF THE DECREE OF O.S.NO.171/2015 DATED 8.2.2017 OF THE II ADDITIONAL SUB COURT, ERNAKULAM.
EXHIBIT P2 THE COPY OF THE DRAFT SALE DEED APPROVED BY THE COURT.
EXHIBIT P3 THE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT PRAYING TO ISSUE ROR CERTIFICATE DATED 18.12.2018.