Gita Subba Rao v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **W.P.(C) No.1184 OF 2020(W)** ## **PETITIONER/S:** **GITA SUBBA RAO AGED 66 YEARS WIDOW OF LATE DR. SUBHA RAO, SEATARA, CC.54/265, KUMARANASAN NAGAR, KADAVANTHARA P.O., KOCHI-682 020.** **BY ADVS. SRI.N.K.KARNIS SRI.S.SHYAM SRI.KIRAN PETER KURIAKOSE** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO REVENUE**| ||**DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695**| ||**001.**| |**2**|**REVENUE DIVISIONAL OFFICER**| ||**FORT KOCHI, COCHIN-682 001.**| |**3**|**VILLAGE OFFICER**| ||**ELAMKULAM VILLAGE, KANAYANNOOR TALUK, COCHIN-682**| ||**020.**| |**4**|**THE KERALA STATE HOUSING BOARD**| ||**REPRESENTED BY ITS SECRETARY, HOUSING BOARD**| ||**BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695**| ||**001.**| **R4 BY ADV. SRI.DENNY DEVASSY** ## **OTHER PRESENT:** ## **KJMOHD ANZAR SPL GP REVENUE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.1184 OF 2020(W) 2 ## **JUDGMENT** The petitioner, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus to call for the records relating to Exts.P6 to P8 and P11 from 2[nd] respondent Revenue Divisional Officer and 3[rd] respondent Village Officer; directing the 4[th] respondent Kerala State Housing Board to produce a copy of the Elamkulam North Housing Accommodation Scheme in this case for the perusal of this Hon'ble Court. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent State and 3[rd] respondent Village Officer to correct the description of the petitioner's land covered by Exts.P5 sale deed dated 07.03.2018 in Ext.P6 ROR dated 02.02.2019 and Ext.P7 basic tax receipt dated 19.09.2019 and other revenue records as 'dry land' instead of 'Nilam'. 2. Going the averments in the writ petition, the 4th respondent Kerala State Housing Board allotted a house plot to the petitioner's husband late Dr. Subba Rao in Kumaranasan Nagar on 07.12.1988 under Elamkulam North Housing Accommodation Scheme for the construction of a residential building. The petitioner's husband constructed a residential building in that plot. After the civil death of the petitioner's husband, the 3rd respondent Village Officer effected mutation of the property in favour of the W.P.(C) No.1184 OF 2020(W) 3 petitioner and her two children. In order to sell that property, the petitioner and her children approached the 3rd respondent Village Officer for Record of Rights (ROR). However, in the ROR issued by the 3rd respondent Village Officer the property is described as 'Nilam'. Therefore, the petitioner approached the 2nd respondent Revenue Divisional Officer, Fort Kochi to correct the classification of the land as dry land. 3. On 17.02.2021, when this writ petition came up for consideration, the learned Senior Counsel for the petitioner place reliance on the judgment of this Court in **Everest Stone Crusher and Granites v. District Collector, Kannur and others [2020 (6) KHC 289]** and **State of Kerala and others v. Binu Mathew Chacko and Others [2020 (6) KHC 717]** . 4. Heard the learned Senior Counsel for the petitioner, the learned Special Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel for the 4th respondent. 5. By Ext.P2 communication dated 07.12.1983 of the Regional Engineer of the 4th respondent Kerala State Housing Board, the petitioner's husband was allotted plot No.139 in the Housing Accommodation Scheme at Elamkulam North, on outright sale, subject to the conditions stipulated therein. Thereafter, W.P.(C) No.1184 OF 2020(W) 4 Ext.P3 agreement of sale dated 11.09.1984 was executed between the 4th respondent Housing Board and the petitioner's husband. The said plot was handed over to the petitioner's husband on 28.07.1989 as evidenced by Ext.P4. The petitioner's husband constructed a residential building in that plot with the approval of the Corporation of Cochin. The petitioner's husband was missing after the construction of the building. After declaration of his civil death by the competent court, the 4th respondent Housing Board executed Ext.P5 sale deed in respect of the aforesaid plot, in favour of the petitioner and her two children, on 07.03.2018. The petitioner obtained Ext.P6 ROR dated 02.02.2019 from the 3rd respondent Village Officer, in which the description of the land is shown as 'Nilam'. In Ext.P7 tax receipt as well the description of the land is shown as 'Nilam'. However, in Ext.P8 relevant extract of the data bank, the property covered by the Ext.P5 is described as 'converted land before 2008'. The petitioner's property in survey Nos.484 and 485 are serial Nos.611 and 612 in Ext.P8, in which it is classified as 'purayidom'. The document marked as Ext.P9 is a memo issued by the Kochi Municipal Corporation regarding change of assessment of building tax, in the name of the petitioner and her children, in respect of house No.64/265 (37/1407) constructed W.P.(C) No.1184 OF 2020(W) 5 in the property covered by Ext.P5 sale deed. The document marked as Ext.P10 is the property tax receipt dated 19.09.2019 issued by Kochi Municipal Corporation. The petitioner submitted Ext.P11 representation dated 29.10.2019 before the 2nd respondent Revenue Divisional Officer to correct the classification of the land in question as dry land, instead of 'Nilam'. 6. The learned Senior Counsel for the petitioner would submit that Ext.P11 representation dated 29.10.2019 made by the petitioner requires a favourable consideration by the 2nd respondent Revenue Divisional Officer, in view of the law laid down by this Court in **Everest Stone Crusher and Granites [2020 (6) KHC 289]** and **Binu Mathew Chacko and Others [2020 (6) KHC 717]** . 7. The learned Special Government Pleader would submit that the 2[nd] respondent Revenue Divisional Officer shall consider Ext.P11 representation made by the petitioner with notice to the petitioner and after affording her an opportunity of being heard. 8. Having considered the submission made by the learned counsel on both sides, this writ petition is disposed of by directing the 2[nd] respondent Revenue Divisional Officer to consider and pass appropriate orders on Ext.P11 representation dated 29.10.2019 W.P.(C) No.1184 OF 2020(W) 6 made by the petitioner with notice to the petitioner and after affording her an opportunity of being heard, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. The legal contentions raised by the petitioner relying on the aforesaid decisions of this Court are left open to be raised before the 2[nd] respondent Revenue Divisional Officer, at appropriate stage. 9. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. 10. Therefore, in terms of the direction contained in this judgment, the 2nd respondent shall take an appropriate decision in the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on the point. W.P.(C) No.1184 OF 2020(W) 7 No order as to costs. **Sd/ANIL K. NARENDRAN JUDGE** MIN W.P.(C) No.1184 OF 2020(W) 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE HAND BOOK ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE LETTER ISSUED BY THE REGIONAL ENGINEER OF THE IST RESPONDENT TO THE PETITIONER'S HUSBAND DATED 7.12.1983.** **EXHIBIT P3 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER'S HUSBAND AND THE REGIONAL ENGINEER OF THE 4TH RESPONDENT DATED 11.9.1984.** - **EXHIBIT P4 TRUE COPY OF THE DOCUMENT DATED 28.7.1989 UNDER WHICH THE ASSISTANT ENGINEER OF THE 4TH RESPONDENT HANDED OVER POSSESSION OF PLOT NO.139 TO THE PETITIONER'S HUSBAND.** - **EXHIBIT P5 TRUE COPY OF THE SALE DEED EXECUTED BY THE 4TH RESPONDENT DATED 7.3.2018.** - **EXHIBIT P6 ROR ISSUED BY THE 3RD RESPONDENT DATED 4.2.2019.** - **EXHIBIT P7 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED BY VILLAGE OFFICER, ELAMKULAM DATED 19.9.2019.** - **EXHIBIT P8 TRUE COPY OF THE RELEVANT PORTION OF LAND IDENTIFICATION DETAILS OF ELAMKULAM VILLAGE ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE COCHIN MUNICIPAL CORPORATION DATED 2.6.2018.** W.P.(C) No.1184 OF 2020(W) 9 |**EXHIBIT P10**|**TRUE COPY OF THE PROPERTY TAX RECEIPT**| |---|---| ||**ISSUED BY THE COCHIN MUNICIPAL**| ||**CORPORATION DATED 19.9.2019.**| |**EXHIBIT P11**|**TRUE COPY OF THE REPRESENTATION**| ||**SUBMITTED BY THE PETITIONER BEFORE THE**| ||**2ND RESPONDENT DATED 29.10.2019.**| |**EXHIBIT P11(A)**|**TRUE COPY OF THE POSTAL RECEIPT**| ||**EVIDENCING ISSUED OF EXT.P11 TO THE 2ND**| ||**RESPONDENT.**|