High Court of KeralaSingle JudgeWrit petition disposed of with directions for d...

Arun Thomas Varghese S/O K.K. Varghese v. State of Kerala and Others

Case / Petition Number:WP(C) NO. 27089 OF 2017

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Murali Purushothaman
Judgment Date
2023-11-27
Court Decision / Holding
The writ petition is disposed of with directions: the petitioner must approach the Assistant Director, Forest Mini Survey (13th respondent) for demarcation of the property described in Ext.P3, with all relevant documents. The 13th respondent shall complete demarcation within five months; after demarcation, the Divisional Forest Officer shall issue an NOC within one month. Upon receipt of the NOC, the petitioner shall file an application for mutation before the Tahsildar (LR), who shall complete the transfer of registry within one month from that date. Based on the NOC, the petitioner may approach the Village Officer for mutation. The Sub Registrar shall not insist on ROR in light of the Court’s dictum in Sainudeen v. State of Kerala and Jacob P.C. v. Village Officer. The Judgment disposes the writ petition accordingly, with the above steps outlined for mutation and demarcation.
Final Disposition
Writ petition disposed of with directions for demarcation, NOC issuance, and mutation steps as outlined; Sub Registrar not to insist on ROR per Sainudeen and Jacob P.C. standards.

Parties to the Case

Appellants / Petitioners

  • ARUN THOMAS VARGHESE
  • N.C.JOHN

Respondents

  • State of Kerala
  • Secretary, Department of Revenue, Secretariat, Thiruvananthapuram-695001
  • The Secretary, Department of Forest and Wildlife, Thiruvananthapuram-695001
  • The Sub Registrar, Vadakkencherry, Alathur, Palakkad District-678683
  • The Land Revenue Commissioner, Thiruvananthapuram-695001
  • The District Collector, Palakkad-678001
  • The Divisional Forest Officer, Nenmara, Palakkad-678508
  • The Tahsildar, Alathur, Palakkad-678541 (corrected as Tahsildar (LR))
  • The Village Officer, Kizakkenchery-II Village, Alathur Taluk
  • SILVEY D/O THATTIL SEBASTIAN, Kadapparayil in Kizhakkencherry AMSOM, Alathur Taluk, Palakkad-678541
  • ANTONY S/O THATTIL SEBASTIAN, Kadapparayil in Kizhakkencherry AMSOM, Alathur Taluk, Palakkad-678541
  • JOSE S/O CHEMBOTTIL DEVASSY, Kadapparayil in Kizhakkencherry AMSOM, Alathur Taluk, Palakkad-678541
  • JOSE S/O THATTIL SEBASTIAN, Talur Desom, Thrissur Village, Mukundapuram Taluk-678541
  • ASSISTANT DIRECTOR, FOREST MINI SURVEY, ARAKKINAR, MATHOTTAM, KOZHIKODE (Addl.R13 Suo Motu Impleaded as per Judgment dated 27.11.2023)

Legal Representation & Advocates

Counsels for Petitioners

  • • SRI.P.R.VENKATESH
  • • SRI.G.KEERTHIVAS

Counsels for Respondents

  • • SRI.P.B.KRISHNAN
  • • SRI.P.M.NEELAKANDAN
  • • SRI.S.NITHIN ANCHAL
  • • SRI.SABU GEORGE
  • • SRI.P.B.SUBRAMANYAN
  • • SRI.SAJAN

Case Synopsis & Summary

The petition concerns a property dispute in which the petitioner Arun Thomas Varghese (along with N.C. John) sought mutation of land described in Sy.No.1/1A of Kizhakkencherry-II Village, Alathur Taluk, Palakkad, acquired through a sale agreement with respondents 9–12. Despite prior decrees and directions by the Sub Court, Palakkad, for execution and registration in the petitioner’s favour, mutation was not effected because the 7th respondent Tahsildar refused to act until a forest land demarcation was carried out to confirm that Ext.P3-covered property does not include forest land. The petitioner approached the Kerala High Court seeking a remedy. The court heard submissions and, on instructions, noted that mutation could be considered if the petitioner filed an application before the Assistant Director, Forest Mini Survey, Kozhikode, for demarcation with all pertinent documents. The court suo motu impleaded the Assistant Director as the 13th respondent and directed a delineated process: demarcation to be completed by the 13th respondent within five months; upon demarcation, the Divisional Forest Officer to issue an NOC within one month; then the petitioner to file for mutation before the Tahsildar (LR), who must complete registry transfer within one month of the mutation application; after NOC, the petitioner may approach the Village Officer for mutation. The court also clarified that the Sub Registrar shall not insist on ROR, relying on Sainudeen v. State of Kerala (2013) (1) KHC 437 and Jacob P.C. v. Village Officer (2020) (4) KLT 271. The writ petition is disposed of with these directions.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants, led by counsel for the petitioner, contended for early mutation of the subject property, asserting a valid sale agreement with respondents 9–12 and relying on prior decrees directing registry in the petitioner’s favour. They argued that forest land demarcation should not unduly stall mutation and sought timely mutation, registration, and transfer of rights, contending that any forest land issue could be resolved through appropriate NOC procedures and demarcation, without denying the title transfer sought by mutation.

Contentions of Respondents

The respondents contended that mutation requires verification of land status, particularly whether forest land is involved. The Tahsildar initially refused mutation due to the necessity of demarcation by forest authorities. It was argued that the Forest Department must determine if any forest land is included within Ext.P3, and that mutation should proceed only after the demarcation and issuance of an NOC by the Forest Mini Survey and Divisional Forest Officer, followed by mutation before the Tahsildar. They also relied on existing forest land demarcation protocols and the need to safeguard forest lands from inadvertent transfer.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Sainudeen v. State of Kerala2013 (1) KHC 437PositiveCited to support not insisting on ROR and to underpin the mutation process in consideration of forest land demarcation.
Jacob P.C. v. Village Officer2020 (4) KLT 271PositiveCited for the principle that mutation can be ordered with appropriate demarcation and that ROR may not be a mandatory precondition.
:null,2013 (1) KLT 221Mentioned OnlyExhibit P6 refers to a judgment reported in 2013 (1) KLT 221; case name not stated; cited as reference material.
:null,SLP(C) NO. 830/2002Mentioned OnlyExhibit P2 references a Supreme Court judgment (SLP(C) 830/2002); case name not provided in the excerpt.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945** ## **WP(C) NO. 27089 OF 2017** ## **PETITIONER:** **ARUN THOMAS VARGHESE S/O.K.K.VARGHESE, KOTTOOR, KANYATTIL, WARRIAM ROAD, KOCHI-16.** **BY ADVS. SRI.P.R.VENKATESH SRI.G.KEERTHIVAS** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**DEPARTMENT OF REVENUE, SECRETARIAT,**| ||**mTHIRUVANANTHAPURAM-695001.**| |**2**|**THE SECRETARY**| ||**DEPARTMENT OF FOREST AND WILD LIFE,**| ||**THIRUVANANTHAPURAM-695001.**| |**3**|**THE SUB REGISTRAR**| ||**VADAKKENCHERRY, ALATHUR,**| ||**PALAKKAD DISTRICT-678683.**| |**4**|**THE LAND REVENUE COMMISSIONER**| ||**THIRUVANANTHAPURAM-695001.**| |**5**|**THE DISTRICT COLLECTOR**| ||**PALAKKAD-678001.**| |**6**|**THE DIVISIONAL FOREST OFFICER**| ||**NENMARA, DIST PALAKKAD-678508.**| |***7**|**THE TAHSILDAR**| ||**ALATHUR, DIST. PALAKKAD-678541.**| ||**(THE DESCRIPTION OF THE 7TH RESPONDENT IS CORRECTED AS**| ||**THAHSILDAR (LR)AS PER JUDGMENT DATED 28.11.2023)**| |**8**|**THE VILLAGE OFFICER**| ||**KIZHAKKENCHERY-II VILLAGE,**| **WP(C) NO. 27089 OF 2017 : 2 :** ## **ALATHUR,PALAKKAD-678541.** **9 SILVEY D/O.THATTIL SEBASTIAN, KADAPPARAYIL IN KIZHAKKENCHERRY AMSOM, ALATHUR TALUK, PALAKKAD-678541.** **10 ANTONY S/O.THATTIL SEBASTIAN, KADAPPARAYIL IN KIZHAKKENCHERRY AMSOM, ALATHUR TALUK, PALAKKAD-678541.** - **11 JOSE** **S/O.CHEMBOTTIL DEVASSY, KADAPPARAYIL IN KIZHAKKENCHERRY AMSOM, ALATHUR TALUK, PALAKKAD-678541.** - **12 JOSE** - **S/O.THATTIL SEBASTIAN,TALUR DESOM, THRISSUR VILLAGE, MUKUNDAPURAM TALUK-678541.** ***13 ASSISTANT DIRECTOR, FOREST MINI SURVEY, ARAKKINAR, MATHOTTAM, KOZHIKODE (* ADDL.R13 IS SUO MOTU IMPLEADED AS PER JUDGMENT DATED 27.11.2023)** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN R BY SPL.GP.SR. ADV.SAJAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 27089 OF 2017 : 3 :** ## **JUDGMENT** The petitioner along with one N.C.John entered into a sale agreement with respondents 9 to 12 for purchasing certain extent of property belonging to them comprised in Sy.No.1/1A of Kizhakkencherry-II Village in Alathur Taluk. As the respondents 9 to 12 failed to execute the deed in favour of the petitioner, various civil cases were filed in that regard and finally the Sub Court, Palakkad, directed the respondents 9 to 12 to execute and register the disputed property in favour of the petitioner. Thereafter, he submitted an application for mutation of the said property. The application for mutation is not considered by the 7[th] respondent Tahsildar, for the reason that demarcation has to be made by the **WP(C) NO. 27089 OF 2017 : 4 :** Forest Authorities to ascertain whether any forest land is included in the property covered by Ext.P3. Aggrieved by the delay in considering the application for mutation, the petitioner has approached this Court by filing this writ petition. 2. Heard the learned counsel for the petitioner and the learned Special Government Pleader. 3. The learned Special Government Pleader, on instructions, submits that the petitioner's application for mutation can be considered, if he files an application before the Assistant Director, Forest Mini Survey, Kozhikode, for demarcation, with all relevant documents. On the basis of the demarcation by the said authority, the Divisional Forest Officer will issue NOC, pursuant to which, the petitioner can apply for mutation. **WP(C) NO. 27089 OF 2017 : 5 :** 4. Accordingly, “the Assistant Director, Forest Mini Survey, Arakkinar, Mathottam, Kozhikode” is _suo motu_ impleaded as the additional 13[th] respondent. Further the description of the 7[th] respondent in the cause title is corrected as the 'Tahsildar (LR)'. 5. In the facts and circumstances of the case and having considered the submissions made across the Bar, there will be a direction to the petitioner to approach the additional 13[th] respondent with necessary application for demarcation of the property covered by Ext.P3 with all relevant documents. The petitioner shall also submit a copy of the said application before the Divisional Forest Officer, the 6[th] respondent. The additional 13[th] respondent shall complete the process of **WP(C) NO. 27089 OF 2017 : 6 :** demarcation within a period of five months from the date of receipt of the said application. Once the demarcation is carried out based on the same, the Divisional Forest Officer shall issue NOC to the petitioner, within one month therefrom. On receipt of the NOC, the petitioner shall file necessary application before the 7[th] respondent Tahsildar for mutation. The Tahsildar (LR) shall complete the process of transfer of registry, within one month from the date of receipt of the application for mutation. On the basis of NOC issued by the 6[th] respondent, the petitioner can approach the concerned Village Officer for effecting mutation of the property. It is also made clear that the concerned Sub Registrar shall not insist for ROR in the light of the dictum laid down by this Court in **WP(C) NO. 27089 OF 2017 : 7 :** **Sainudeen** v. **State of Kerala [2013 (1) KHC 437]** and in **Jacob P.C. v. Village Officer [2020** ## **(4) KLT 271]** . The writ petition is disposed of accordingly. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 27089 OF 2017 : 8 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE DECREE DATED 14.3.2001 IN A.S.NO.245/1991 OF THIS HON'BLE COURT.** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 26.2.2007 IN SLP(C) NO.830/2002 OF THE HON'BLE SUPREME COURT.** - **EXHIBIT P3 TRUE COPY OF THE DRAFT SALE DEED PRODUCED ON 25.9.2013 BY THE PETITIONER BEFORE THE COURT OF THE SUBORDINATE JUDGE, PALAKKAD.** - **EXHIBIT P4 TRUE COPY OF IA NO.3839/2008 FILED BEFORE THE SUB COURT, PALAKKAD.** - **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 25.2.2014 FROM THE ADDITIONAL TAHSILDAR TO PRINCIPAL SUB JUDGE.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT REPORTED IN 2013 (1) KLT 221.** - **EXHIBIT P7 TRUE COPY OF COMMUNICATION DATED 14.2.2011 ISSUED BY THE LAND REVENUE COMMISSIONER.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 21.1.2016 IN W.P.(C) NO.28297/2013 OF THIS HON'BLE COURT.**