Hafsa Aliyar @ Amsa Beevi v. The District Collector, Ernakulam; Tahsildar, Aluva Taluk; Village Officer, Kalady; Sub Registrar, Srimoolanagaram, Ernakulam District

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY ,THE 03RD DAY OF JANUARY 2019 / 13TH POUSHA, 1940** ## **WP(C).No. 40782 of 2018** ## **PETITIONER/S:** **HAFSA ALIYAR @ AMSA BEEVI AGED 70 YEARS W/O.K M ALIYAR, KADAVATH HOUSE, EDAYAPPURAM, ALUVA, ERNAKLAM DISTRICT.** **BY ADVS. SRI.GEORGE SEBASTIAN SRI.B.S.SURESH KUMAR SRI.R.ARUN (PALLURUTHY)** ## **RESPONDENT/S:** - **1 THE DISTRICT COLLECTOR ERNAKULAM-682030.** - **2 THE TAHSILDAR, ALUVA TALUK, ERNAKULAM DISTRICT-683101.** - **3 THE VILLAGE OFFICER, KALADY, ERNAKULAM DISTRICT-683574** - **4 THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, SREEMOOLANAGARAM, ERNAKULAM DISTRICT-683580** ## **OTHER PRESENT:** ## **SMT.A.C.VIDHYA,GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.40782/2018 2 # **ALEXANDER THOMAS, J.** - - - - - - - - - - - - - - - - - - - - - # **W.P.(C)No.40782 OF 2018** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of January, 2019 ## **ORDER/JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows : “i. To issue a writ of mandamus, order or direction to the 3[rd] respondent to issue RoR to the petitioner on the basis of Ext.P3 application. ii. In the alternative, issue a writ of mandamus, order or direction to the 4[th] respondent to register the Settlement Deed executed by the petitioner to her son without insisting for the production of RoR. iii. To grant such other reliefs as this Hon'ble court deems fit.” 2. Heard Sri.George Sebatian, the learned counsel appearing for the petitioner and Smt.A.C.Vidhya, the learned Government Pleader appearing for the respondents. 3. According to the petitioner, he is the owner and in possession of 29.5 cents of immovable property comprised in resurvey number 494/2 of Kalady Village in Aluva Taluk in Ernakulam revenue district and basic land W.P.(C)No.40782/2018 3 tax has also been accepted from the petitioner in respect of the above said property in terms of the provisions contained in the Kerala Land Tax Act, 1961 and the Kerala Land Tax Rules, 1972 as can be seen from Ext.P1 receipt dated 19.5.2018. It is stated that the petitioner's father had settled the property in favour of the petitioner and her sister Mariyumma and that both were having one half share in the total extent of property and later petitioner's sister Mariyumma had sold the property belonging to her share etc. That the property has not been formally mutated in the name of the petitioner and Ext.P1 clearly states that land holder concerned is the petitioner. It is also stated in Ext.P1 that the land tax amount has been received from the petitioner and her sister Mariyumma etc. That now the petitioner intends to sell her property and the officials of the 4[th] respondent Sub Registrar has now informed that in view of the provisions in Ext.P2 G.O.(Rt)No.2214/2012 dated 13.4.2012, sale deed executed by the petitioner in respect of the above said property covered by Ext.P1 could be registered only if she produces the RoR certificate. Thereupon the petitioner submitted Ext.P3 application dated 18.9.2018 before the third respondent Village Officer for grant of RoR ( Record of Right Certificate) to the petitioner in respect of the property covered by Ext.P1. Ext.P4 is the encumbrance certificate which would show that there are no encumbrances to the said property etc. W.P.(C)No.40782/2018 4 4. The learned Government Pleader would now submit on the basis of the instructions furnished by the third respondent village officer that since the property was not formally mutated in the name of the petitioner, basic land tax has been accepted in the names of the petitioner and her sister Mariyumma as can be seen from Ext.P1 etc. 5. It is contended by the petitioner that merely because the property has not be formally mutated in the name of the petitioner and merely because land tax has been accepted jointly in the names of the petitioner and her sister is no ground to refuse the issuance of RoR certificate. However for the sake of completeness, it may be better to submit applicatin for transfer of registry which may also be considered expeditiously by the 3[rd] respondent village officer, as basic land tax has already been accepted as per Ext.P1. The third respondent village officer will conduct appropriate enquiries with due notice to the petitioner and may find out whether the petitioner and her sister had obtained the property from their father and whether the petitioner's sister Mariyumma has already sold her share in the said property and whether the property covered by Ext.P1 is actually in the share of the petitioner etc. After conducting necessary enquiries, the third respondent village officer should not delay the matter further and should ensure that the request for transfer of registry and for grant of RoR certificate as per Ext.P3 application dated W.P.(C)No.40782/2018 5 18.9.2018 is finalised without much delay preferably within six weeks from the date of production of a certified copy of this judgment. 6. As regards the second prayer of the petitioner, it is seen that this Court has already held in the judgment in **Synudheen v. State of Kerala (2013 (1) KLT 221)** ( judgment dated 17.12.2012 in W.P.(C) 15082/2012) that so long as the provisions in the Registration Act and Registration Rules are not amended so as to insist for production of RoR certificate before the deed could be registered etc. by the registration officials, they cannot insist that deeds could be considered for registration only after production of RoR certificate etc. This court held that so long as the Registration Rules are not amended production of RoR certificate can be only optional for the party concerned and otherwise it will interfere with the right of the property owner to transfer his property as conferred in Article 300 A of the Constitution of India. It is also held that preparation of RoR in respect of every item of land may be a laudable idea. But in may 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 and that the property owners may have to transfer their property for may urgent purposes such as for purchase of another property, to meet the liability towards loan, if any taken, for meeting the expenses for W.P.(C)No.40782/2018 6 education of children and for meeting the marriage expenses of children etc. Therefore, if the stringent condition insisting for production of RoR is not required under the Registration Act and Registration Rules, then production of RoR cannot be made compulsory and is only optional and non-production of the certificate cannot be the legal basis for the registration officials to refuse registration of any such deed etc. It is profitable to refer to paragraphs 12 and 13 of the above said judgment of this Court in **Synudheen** 's case ( supra) which reads as follows : “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 W.P.(C)No.40782/2018 7 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.” 7. From the perusal of paragraph 6 of the said judgment in **Synudheen'** s case (supra), it can be seen that respondents State Authorities had placed reliance on Government orders dated 4.8.2010 and dated 15.03.2011 as per Exts.R1(a) and R1(b) produced therein which governs the e-District Project launched in Kerala under the National e-governance Plan etc. It appears Ext.P2 G.O.(Rt)No.2214/2012 dated 13.4.2012, also speak about land records modernisation and on line transfer of Registry. Accordingly it is only to be held that the matter in issue regarding the alternative prayer of the petitioner is fully covered in favour of the petitioner s case on the basis of the dictum laid down by this court in **Synudheen'** W.P.(C)No.40782/2018 8 (supra). Hence it is ordered that the 4[th] respondent Sub Registrar cannot insist that the petitioner should necessarily produce RoR certificate in respect of the property concerned before the registration of the sale deed could be considered and production of RoR certificate is only optional. Hence it is ordered that in case the petitioner presents the sale deed for registration before the 4[th] respondent, then the 4[th] respondent shall register the same, if it is otherwise in order and shall not refuse the registration of the deed for registration on the ground that the petitioner should necessarily produce the RoR certificate etc. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** sv. W.P.(C)No.40782/2018 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE BASIC TAX RECEIPT DATED 19.5.2018 ISSUED FROM THE VILLAGE OFFICE, KALADY.** **EXHIBIT P2 A TRUE COPY OF G.O.(RT)NO.2214/2012 OF THE REVENUE DEPARTMENT DATED 13.4.2012.** **EXHIBIT P3 A TRUE COPY OF THE APPLICATION DATED 18.9.2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT P4 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 12.10.2018 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT.**