Balakrishnan v. State of Kerala & Others

**WP(C) NO. 14328 OF 2021** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943** ## **WP(C) NO. 14328 OF 2021** ## **PETITIONER/S:** BALAKRISHNAN, AGED 67 YEARS, S/O. VALIYATTOOR GOVINDAN NAIR, ARIYALLOOR AMSOM DESOM, MALAPPURAM 676 312, REPRESENTNED BY HIS POWER OF ATTORNEY HOLDER, ASHARAF, AGED 58 YEARS, S/O. ASSAINAR HAJI, 'MUNEER MANZIL', VADAKARA TALUK, KANNUKKARA P.O. KOZHIKODE DISTRICT 673 102. BY ADVS. ZAKEER HUSSAIN K.A.SANJEETHA ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE SPECIAL OFFICER, GOVT. LAND RESUMPTION STATE SPECIAL OFFICE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM 695033. **WP(C) NO. 14328 OF 2021 2** 3 THE TAHSILDAR, VYTHIRI TALUK OFFICE, VYTHIRI, WAYANAD 673 576. 4 THE VILLAGE OFFICER, VELLARIMALA VILLAGE, WAYANAD 673 577. SRI SAYED M THANGAL GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 14328 OF 2021** **3** ## **JUDGMENT** Being aggrieved by the refusal on the part of the respondents in effecting mutation and in not accepting basic tax in respect of property over which, the petitioner has acquired absolute title, he has approached this Court seeking the following relief: (i) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 4th respondent to effect mutation in the village records in respect of petitioner’s property covered by Ext.P1 sale deed in his name and to accept the land tax and to issue Thandaper certificate and other necessary certificates to the petitioner in respect of the said property without any further delay. 2. The petitioner contends that he is the absolute owner in title and possession of property having an extent of 4.0470 Ha. in Block No. 32 in Re-Sy. No. 3 of Vellarimala Village. The said property was acquired by the petitioner on the cover of Ext. P1 sale deed executed and registered on 23.9.2006. The petitioner states that the property purchased as aforesaid was part of a larger holding of 10.800 Ha. held by one Sri. George K. Varkey and it was by Ext.P2 sale deed that the **WP(C) NO. 14328 OF 2021 4** property was sold to Sri. Ashraf, the assignor of the petitioner. The petitioner states that as is evident from Ext.P3, the BTR would show that George K. Varkey, the original owner, was paying basic tax. Reliance is also placed on Ext.P4 Encumbrance Certificate to substantiate his contention that the property is free of all encumbrances. 3. According to the petitioner, when he approached the 4th respondent along with the title deed and requested for effecting mutation, his request was not acceded to. On enquiry, it was revealed that mutation is not being effected on the premise that the property originally was held by Malayalam Plantation Ltd. and therefore, there is an embargo. The petitioner asserts that the property purchased by the petitioner has nothing to do with the property of Malayalam Plantation as it fell within Sy. No.1226 of Vellarimala Village. 4. According to the petitioner, in similar circumstances several others had approached and by Exts.P7 to P9 judgments, those writ petitions were disposed of with directions. Reliance is also placed on Exts.P10 to P13 judgments to bring home his point that the restrictions in effecting mutation and in accepting basic tax cannot be sustained on the ground that the property was part of holdings of Malayalam **WP(C) NO. 14328 OF 2021** **5** Plantations. 5. I have heard Smt. Sanjeetha K.A., the learned counsel appearing for the petitioner and the learned Government Pleader. 6. I have considered the submissions made across the Bar. 7. Ext.P1 sale deed reveals that the petitioner has acquired title over property having an extent of 4.0470 Ha. comprised in Re-Sy No.3 of Vellarimala Village. The reason for refusing to effect mutation and to accept basic tax from the petitioner is for the reason that M/s. Malayalam Plantation had properties in the same Village. The petitioner contends that Malayalam Plantation had only 38.19 Acres in Sy.No.1226 of Vellarimala Village as is evident from Ext.P6 and the property covered under Ext.P1 does not form part of the above property. 8. Even otherwise, it would be evident from Exts.P7 to P13 judgments produced before this Court that insofar as the properties held by Malayalam Plantation is concerned, the competent authorities of the State Government had claimed that the titles over the land actually vest with the State and on that basis, had taken land conservancy **WP(C) NO. 14328 OF 2021** **6** proceedings under the Land Conservancy Act and the Rules framed thereunder. A Special Officer was appointed for resuming possession of the land from M/s.Malayalam Plantations Ltd. A Division Bench of this Court in **Harrisons Malayalam Ltd. v. State of Kerala** [2018 (2) KLT 369], interfered with the proceedings after holding that initiation of proceedings under the Kerala Land Conservancy Act was untenable under law in view of the bona fide claim of title raised by M/s. Harrisons Malayalam Ltd. and their assignees. After quashing the proceedings, liberty was granted to the State to institute a civil suit for recovery of possession of the land. Though a Special Leave Petition was preferred, the same was dismissed by the Apex Court confirming the judgment of this Court. Taking note of all these aspects, coordinate Benches of this Court have granted reliefs to assignees such as the petitioner and this fact would be evident from Exts.P7 to P13. 9. Having considered all the relevant aspects and in the light of the view taken by this Court in Exts.P7 to P13 judgments, the petitioner is entitled to succeed. There will be a direction to the petitioner to file an application before the competent among respondents seeking to permit him to effect mutation of the property, to accept basic tax and for issuance of revenue records. If such an application is filed within a **WP(C) NO. 14328 OF 2021** **7** period of ten days from the date of receipt of a copy of this judgment, the concerned respondent shall take up the same and issue the requested records to the petitioner within a further period of one month. Before parting, it is made clear that the directions issued as aforesaid will be subject to the adjudication of the title in a Civil Suit, if any, instituted by the State. This writ petition will stand disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C) NO. 14328 OF 2021** **8** ## **APPENDIX OF WP(C) 14328/2021** - PETITIONER (S) EXHIBITS : Exhibit P1 TRUE COPY OF THE SALE DEED NO. 2712 OF 2006 OF KALPPETTA SUB REGISTRY OFFICE. - Exhibit P2 TRUE COPY OF THE SALE DEED NO. 672/2001 OF KALPETTA SUB REGISTRY OFFICE. - Exhibit P3 TRUE COPY OF THE RELEVANT PAGE OF THE BASIC TAX REGISTER MAINTAINED BY THE 4TH RESPONDENT. - Exhibit P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 19/06/2020 ISSUED BY THE SUB REGISTRAR OFFICE, KALPETTA. - Exhibit P5 TRUE COPY OF THE LETTER DATED 21/07/2014 ISSUED BY THE DISTRICT COLLECTOR WAYANAD. - Exhibit P6 TRUE COPY OF THE LETTER DATED 30/03/2017. Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 5/8/2015 IN WPC NO. 22088 OF 2015. - Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 22/9/2015 IN WPC NO. 26638 OF 2015. - Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 14/7/2016 IN WPC NO. 11132 OF 2016. - Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 12/4/2018 IN WPC NO. 13227/2018. - Exhibit P11 TRUE COPY OF THE JUDGMENT DATED 13/8/2018 IN WPC NO. 26062/2018. - Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 5/10/2018 IN WPC NO. 32461/2018. **WP(C) NO. 14328 OF 2021 9** Exhibit P13 TRUE COPY OF THE JUDGMENT DATED 12/11/2018 IN WPC NO. 35170/2018. RESPONDENT(S) EXHIBITS : NIL