Jacob Varghese v. The Commissioner of Land Revenue, Public Office Building, Thiruvananthapuram, and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`THURSDAY, THE 3[RD] DAY OF AUGUST 2023 / 12TH SRAVANA, 1945`** ## **`WP(C) NO. 3004 OF 2013`** ## **`PETITIONER:`** ``` JACOB VARGHESE S/O M.T.VARGHESE, MALAYAKIL KOONAN, PUTHINCHIRA EAST P.O., THRISSUR, REPRESENTED BY THE POWER OF ATTORNEY HOLDER BIJU VARGHESE, S/O M.T. VARGHESE, MALAYAKIL KOONN, PUTHINCHIRA EAST P.O., THRISSUR. ``` ``` BY ADVS. SRI.DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY ``` ## **`RESPONDENTS:`** ``` 1THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695 033. 2THE DEPUTY COLLECTOR REVENUE VIGILANCE, CENTRAL ZONE, ERNAKULAM, MINI CIVIL STATION, TRIPUNITHARA-682 301. 3THE ADDITIONAL TAHSILDAR ALUVA-683 101. 4THE VILLAGE OFFICER ALUVA EAST VILLAGE, ALUVA-683 101. 6STATE BANK OF TRAVANCORE M.G. ROAD, ERNAKULAM-682 016, REPRESENTED BY ITS ASSISTANT GENERAL MANAGER. BY ADVS. SRI.ALUNKAL GEORGE K.SUJAI SATHIAN ``` ``` 2 ``` ## **`WP(C) NO. 3004 OF 2013`** ``` SRI.M.JITHESH MENON SRI.DEEPAK JOY.K. SRI.K.NARAYANAN PARUR DEEPA NARAYANAN(K/1754/1995) PREETHI. P.V.(K/1819/1999) M.V.BALAGOPAL(K/707/2009) GOURI MEEMPAT(K/001516/2021) SANGEETHA SREEKUMAR(K/2099/2022) T.SETHUMADHAVAN (SR.)(S-310) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 3004 OF 2013 ``` ``` 3 ``` ## **JUDGMENT** 1. Orders Ext.P12 dated 14.11.2012 of the Additional Tahsildar, Aluva, reports of Land Revenue Commissioner dated 20.04.2011 Ext.P13, Deputy Collector (Vigilance) dated 22.10.2012 Ext.P14 and Village Officer dated 04.08.2012 Ext.P15 are under challenge in the present writ petition. 2. Vide Exts.P1 and P2 dated 20.02.2008 and P3 dated 22.02.2008 sale deeds, petitioner purchased an area measuring 53 Ares and 81 square meters of property lying in Re-survey No.288/3 Block No.36 of Aluva East Village (old Survey No.614/2A/2) on the basis of an encumbrance certificate in respect of the period from 01.01.1975 to 26.05.2010 vide Ext.P4, which according to the aforementioned certificates, were free from encumbrances. Even a possession certificate was also issued by the Village Officer - 4[th] respondent vide Ext.P5. On re-survey of the properties subsequent survey numbers were assigned as 288/3 Sch 1.1, 288/3 sch 2.1 and 288/3 sch 1.1 respectively ``` WP(C) NO. 3004 OF 2013 ``` ``` 4 ``` in Block No.36 as per the location sketch of the Village Officer dated 17.07.2010 Ext.P6. Petitioner is stated to be paying tax as evident from receipt Ext.P7, for, the property was mutated in his favour on 20.05.2009. 3. Learned counsel for the petitioner submitted that the 5[th] respondent ie., State Bank of Travancore vide letter dated 31.01.2010 submitted a request to the Tahsildar, Aluva, for effecting mutation in respect of land measuring 62 cents of land in old Survey No.614/2A-2 of Aluva East Village alleged to have purchased on 21.02.1983 as per the orders passed in Execution Application No.103/88 in Execution Petition No.205/85 in O.S. No.37/1977 of Sub Court, North Paravur, decreed on 31.10.1977. It was contended that from the contents of the decree and the application aforementioned of the 5[th] respondent – Bank, the property of one Sri.Parameswaran Kumaran Nair was stated to have been sold in favour of the bank and the delivery was alleged effected on 23.02.1988. ``` WP(C) NO. 3004 OF 2013 ``` ``` 5 ``` 4. The bank till expiry of twenty (23) years did not make any effort to get the mutation done. The mutation of the petitioner effected on 20.05.2009 was cancelled on the basis of the reports Exts.P13, P14 and Ext.P15 referred to above, vide Ext.P12 at the back of the petitioner. 5. 5[th] respondent – Bank has already filed a civil suit No.141 of 2011 claiming declaration of title and recovery of possession arraying the petitioner as defendant No.1 and the counter claim has also been set up. In fact, a big chunk of land measuring 3.35 Acres was in the name of Parameswaran Kumaran Nair, Narayanan Nair and Prabhakaran Nair whereas on the basis of the decree, purchase by the Bank was of Parameswaran Kumaran Nair, for, all the three persons had already obtained their respective share in pursuance of partition deed. This fact is evident from the report of Taluk Surveyor dated 16.06.2010 Ext.P8 and of Village Officer dated 11.02.2011 Ext.P9. Petitioner was flabbergasted to receive the impugned communication dated 14.11.2012 Ext.P12 cancellation of mutation which was done at the back ``` WP(C) NO. 3004 OF 2013 ``` ``` 6 ``` of the petitioner without complying with the principles of natural justice and thus urged this Court for setting aside the aforementioned notification till the pendency of the suit where the identity of the property is yet to be settled. In other words, the mutation does not confer any title as it is only meant for fiscal purposes. In the pending suit, petitioner had already sought assistance of trial Court for appointment of the Commission. Commission submitted a report and alleged that the identity of the property in the previous suit and the pending suit is the same which was challenged in this Court in O.P.No.2075/2015 which was dismissed by reserving the right in favour of the petitioner arrayed as defendant No.1 in the pending suit to exhaust the remedy as per the judgment of this Court in _**Francis Assissi**_ v. _**Sr.Breesiya**_ [2017 (1) KLT 1041]. 6. On the other hand, learned senior counsel representing the Bank opposed the prayer and submitted that since mutation does not confer any title, no harm and prejudice would be caused to the petitioner, as in respect of a ``` WP(C) NO. 3004 OF 2013 ``` ``` 7 ``` matter pertaining to cause of action accrued in favour of another owner. The cancellation of mutation was challenged in W.P.(C).No.29797/2012 and this Court while dismissing the O.P preferred by the petitioner, by a common judgment dated 27.06.2023 disposed of the writ petition by holding that the cancellation of mutation would be subject to the decision to be taken in the decree Ext.R5(a) and the order of the executing Court Ext.R5(b) reveals the old Survey number as 614/2A-2. 7. Sri.Appu.P.S, learned Government Pleader countered the argument of the petitioner by referring to the pleadings in paragraphs 5 and 6 of the counter affidavit and submitted that the petitioner has not come to the Court with clean hands as before taking the steps for cancellation of mutation, notice was sent, hence the petitioner was not permitted to raise such plea of non-compliance of principles of natural justice. 8. I have heard the learned counsel for the parties ``` WP(C) NO. 3004 OF 2013 ``` ``` 8 ``` and appraised the paper book. 9. The contents of paragraphs 5 and 6 of the counter statement filed on behalf of the respondent No.3 reads as under: “ 5. As per sale deed Nos.956/08, 957/08, 1007/08 of Aluva SRO the petitioner obtained an extent of 53.81 ares of land. An extent of 84.80 ares of land comprising in the Re.Sy. B1.36, Sy. 288/3 was lying in the name of Kumaran Nair, Prabhakaran Nair etc of Thevakkalputhenveettil as per Thandaper No.3969. Mutation was effected with regard to 53.81 ares of property comprising in Re.Sy.. Block 36, Sy. 288/31 part of Aluva East Village in the name of the petitioner vide VR 4677 /07-08 of Aluva East Village and Thadaper No.. 14597 was allotted to the petitioner. The mother Thandaper of Thandaper 14597 is T.P 3069 from which mutaitons were effected in the names of the persons who sold the lands to the petitioner table was cancelled and proceedings in this connection dtd. 14.11.2012 no 6. The Assistant General Manager, State Bank of Travancore submitted an application dtd. 30.01.2010 before Village Officer Aluva East Village for getting an extent of 62 cents of land comprising in old sy.nos. 614/2A/2-3 obtained by it by virtue of decree in O.S 37/77 E.P 205/83, EA. 103/88 of Sub Court, Paravur recorded in its name in Village records. After verifying the relevant records and the inspecting lie of land showed by the Bank it was reveled at ``` WP(C) NO. 3004 OF 2013 ``` ``` 9 ``` the instance of Village Officer, Aluva East that old sy.nos. 614/2A-2 correlates with Resy. nos. 288/2,3. The Taluk Surveyor also has inspected the land and has reported that the land over which the Bank has made claim is part of Re.sy. B1.36, Sy. 288/3. But for effecting sub division survey, possession and clear boundaries of the property are essential. Thus the surveyor has axis reported that as sy. nos.288/2, 3 are lying as single plot without clear boundaries and land obtained by the bank by virtue of the decree of the court does not have clear boundaries, and therefore sub division survey cannot be effected. The surveyor stated in the report dtd. 16.06.2010 that sub division survey can be made and records be prepared when clear boundaries are laid.” 10. On perusal of the same, it is evident that the notice was sent to the erstwhile owners for mutation in the year 2009 ie., on 20.05.2009 but it had already been effected in favour of the petitioner. There is no proof or pleadings as to whether the petitioner was ever served a notice on pendency of the proceedings of cancellation of the mutation. No doubt, this Court while disposing of O.P. preferred by the petitioner vis-a-vis the Commission report and another writ petition preferred by another owner, kept the question of cancellation of mutation to open subject to the outcome of the suit. But ``` WP(C) NO. 3004 OF 2013 ``` ``` 10 ``` the fact remains petitioner was never served with any show cause notice by the competent authority ie., Tahsildar much less not associated when the Village Officer, Land Revenue Commissioner and Deputy Collector (Vigilance) made any enquiry and submitted reports Exts.P13, P14 and P15. There is no quarrel to the fact that the mutation does not confer title, it is for that reason respondent No.5 Bank has already filed suit claiming declaration of title and possession. In such circumstances, rather the bank should have made a request to the Tahsildar to keep the proceedings in abeyance. Even though the Bank faulted in not making such submissions, had notice been issued to the petitioner, the stand taken in the present writ petition would have been brought to the notice of Tahsildar, wisdom may have dawned to keep the proceedings of cancellation of mutation in favour of the petitioner effected on 20.05.2009 in abeyance. 11. As an upshot of my finding, I am of the view neither the cancellation of mutation dated 14.11.2012 Ext.P12 and reports Ext.P13 dated 20.04.2011, Ext.P14 dated ``` WP(C) NO. 3004 OF 2013 ``` ``` 11 ``` 22.10.2012 and Ext.P15 dated 04.08.2012 can sustain as they were obtained and prepared at the back of the petitioner. The same are ordered to be quashed. It would not be proper for this Court to issue a direction for re-visitation of the issue with regard to cancellation of mutation, for, mutation does not confer title except that it is meant for only fiscal purpose, particularly, in view of the fact that the civil suit qua declaration and title is still pending. The occasion to effect mutation would arise on when civil proceeding attains finality Writ petition stands allowed in the aforementioned terms. **Sd/-** **AMIT RAWAL JUDGE** nak ``` WP(C) NO. 3004 OF 2013 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 3004/2013`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF REGISTERED SALE DEED NO.957/1/2008 DATED 20.02.2008` - `EXHIBIT P2 TRUE COPY OF THE REGISTERED SALE DEED NO.956/1/2008 DATED 20.02.2008` - `EXHIBIT P3 TRUE COPY OF THE REGISTERED SALE DEE NO.1007/1/2008 DATED 22.02.2008` - `EXHIBIT P4 TRUE COPY OF ENCUMBRANCE CERTIFICATE IN RESPECT OF THE PROPERTIES FROM 19452010 DATED 02.06.2010` - `EXHIBIT P5 TRUE COPY OF POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 17.07.2010` - `EXHIBIT P6 TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER DATED 17.07.2010` - `EXHIBIT P7 TRUE COPY OF TAX RECEIPT FOR THE YEAR 2010-2011` - `EXHIBIT P8 TRUE COPY F THE LETTER ISSUED BY TAHSILDAR` - `EXHIBIT P9 TRUE COPY OF THE COMMUNICATION ISSUED BY VILLAGE OFFICER` - `EXHIBIT P10 TRUE COPY OF THE PLAINT O.S.141/2011 FILED BY THE BANK` - `EXHIBIT P11 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER` - `EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 3RD RESPONDENT DATED 14.11.2012` ``` WP(C) NO. 3004 OF 2013 ``` ``` 13 ``` ``` EXHIBIT P13TRUE COPY OF THE ORDER ISSUED BY LAND REVENUE COMMISSIONER DATED 20.04.2011 ``` - `EXHIBIT P14 TRUE COPY OF THE ORDER ISSUED BY DEPUTY COLLECTOR (VIGILANCE) DATED 22.10.2012` - `EXHIBIT P15 TRUE COPY OF THE ORDER ISSUED BY VIGILANCE OFFICER DATED 04.08.2012` - `EXHIBIT P16 TRUE COPY OF THE INTERIM ORDER ISSUED BY THE HONOURABLE HIGH COURT OF KERALA IN W.P.(C)29797/2012` ``` RESPONDENT EXHIBITS ``` - `EXHIBIT R5(A) TRUE COPY OF THE DECREE IN O.S.NO.37/1977 OF SUB COURT, PARAVUR` - `EXHIBIT R5(B) TRUE COPY OF THE DELIVERY REPORT IN O.S.NO.37/1977 OF SUB COURT, PARAVUR` - `EXHIBIT R5(C) TRUE COPY OF THE SKETCH IN` - `O.S.NO.37/1977 OF SUB COURT, PARAVUR` - `EXHIBIT R5(D) TRUE COPY OF THE COMMISSION REPORT IN O.S.NO.141/2011 ON THE FILES OF THE SUB COURT, PARAVUR` - `EXHIBIT R5(E) TRUE COPY OF THE PLAN IN O.S.NO.141/2011 ON THE FILE OF SUB COURT, PARAVUR.`