Jose, S/o Ipe Varghese v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 16TH DAY OF JULY 2014/25TH ASHADHA, 1936** ## **WP(C).No. 15299 of 2014 (J)** **----------------------------** ## **PETITIONER(S): ------------------------** **JOSE, S/O. IPE VARGHESE, AGED 64 YEARS, RESIDING AT CHUNDANGAYIL HOUSE, MUVATTUPUZHA VILLAGE, ERNAKULAM.** **BY ADVS.SRI.BECHU KURIAN THOMAS, SRI.PAUL JACOB (P).** ## **RESPONDENT(S):** - **----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **2. THE INSPECTOR GENERAL OF REGISTRATION, THIRUVANANTHAPURAM-695 001.** **3. THE DISTRICT REGISTRAR, IDUKKI, CIVIL STATION, KUYILIMALA, IDUKKI DISTRICT-685 602.** **4. THE DISTRICT COLLECTOR, IDUKKI, COLLECTORATE, KUYILIMALA, IDUKKI DISTRICT-685 602.** ## **5. THE TAHSILDAR,** - **DEVIKULAM TALUK, DEVIKULAM. P.O., IDUKKI DISTRICT-685 613.** **6. THE SUB REGISTRAR, DEVIKULAM, DEVIKULAM. P.O, PIN-685 613.** **BY SPL. GOVT. PLEADER (REVENUE) SMT.SUSEELA R.BHAT.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-07-2014, THE COURT ON 16-07-2014 DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 15299 of 2014 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1. TRUE COPY OF THE SALE DEED NO. 1407 OF 1992 OF DEVIKULAM SRO DATED 12-06-1992.** - **P2. TRUE COPY OF THE TAX PAID RECEIPT DATED 11-03-2013 FOR THE YEAR 2013.** - **P2A. TRUE COPY OF THE TAX PAID RECEIPT DATED 17-04-2012 FOR THE YEAR 2012.** - **P3. TRUE COPY OF THE JUDGMENT DATED 16-08-2012.** ## **RESPONDENT'S EXHIBITS:-** ## **NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ **W.P.(C).No.15299 of 2014** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16[th ] day of July, 2014 ## **J U D G M E N T** The writ petitioner approached this court feeling aggrieved by insistence of no-objection certificate prior to transferring property belonging to him in the Devikulam Taluk in Idukki District. 2. The petitioner claims to be the owner of 10 cents of land situated in survey number 155/3 in Kannan Devan _mala_ in Devikulam Taluk. He relies on Ext.P1 to evidence his title deed. The property tax payment receipts are Exts.P2 and P2(a). 3. The petitioner was informed by the revenue authorities that he has to obtain no-objection certificate from the revenue authorities for the purpose of registration as a condition to accept any document involving transfer of his property by the Registrar concerned. It is challenging the above action, this writ petition is filed. 4. The petitioner relies on the decision of the Division Bench of this Court in **Selvam v. State of Kerala [2010 (1) KLT 508]** , wherein it is was held in paras.13 and 14 as follows: “13. ...........Learned Addl. Advocate General fairly conceded before us that going by the provisions contained in the Registration Act and the Rules framed thereunder, such an embargo or interdiction cannot be placed by the revenue `W.P.(C).No.` 15299 `/2014` ## -:2:- officials on the registering officers. But according to the learned Addl.Advocate General, such an unusual step was necessitated in view of the prevailing circumstances in Udumbanchola and Devikulam Taluks and particularly in Chinnakkanal Village and Munnar area. 14. It may be true that large number of bogus pattas are in circulation in that area. Complicity of some of the officials in the Department is also not ruled out by the Government. But so long as the provisions contained in the Registration Act do not give any power or authority to the revenue officials to meddle with the power vested with the registering authority under the Act, the action of the respondents-revenue officials cannot be countenanced or justified.” 5. On behalf of the first respondent a statement is filed. It is contended by the learned Government Pleader that an amendment was brought to Section 71 of the Registration Act, 1908 by adding Sub-section 3 (the amendment has come into force with effect from 28/01/2013). Section 71(3) reads as follows: “(3) No registering officer shall accept for registration any document involving transfer of property including contract for sale of immovable property belonging to or vested in the Government of Kerala or public sector undertakings operating in the State or local self government institutions unless it is accompanied by a no objection certificate issued by an officer authorised by the State Government in this behalf.” `W.P.(C).No.` 15299 `/2014` -:3:- In the light of the above amendment, it is contended by the learned Government Pleader that the decision relied on by the petitioner in **Selvam's** case ( _supra_ ) has no use as the same was rendered before the amendment. 6. One of the objects for making State amendment, by name, the Registration (Kerala Amendment) Act, is to refuse registration of documents which involve transfer of ownership of the land belonging to the Government or other public sector undertakings. Thus, by amendment whatever be the nature of interest in the tenure of the land, that could be transferred by the holder of the land only with a no-objection certificate issued by the Government or by the revenue authorities. By the above amendment, no right or interest of the absolute owner of the property is fettered, to transfer his property to any person of his choice. 7. The writ petitioner has no case that the property mentioned as above belongs to the government. Therefore, amended Section 71(3) of the Registration Act, 1908 is of no avail, for the revenue authorities, to insist for no-objection certificate. Nothing has been brought to my notice to show that property belongs to the government. A counter statement has been filed in this matter with an object to counter the interim relief sought in the writ petition. The first respondent in the statement itself sought, right to file a detailed counter affidavit. However, considering the nature of the `W.P.(C).No.` 15299 `/2014` -:4:- direction to be issued in this writ petition, I am of the view, there is no necessity to have a detailed counter affidavit on-board as the registering authority has ample power under law to deal with a situation wherein property of the Government is intended to be transferred by executing a document. 8. Sections 71 to 77 of the Registration Act, arm registering authority with a power to conduct an enquiry before the registration, to deny registration in certain situations. The scope of enquiry is succinctly laid down by this court in **Hamsa vs. District Registrar General [2011(3) KLT 64]** as follows: “It is not as if any document presented for registration should be compulsorily registered by the Sub Registrar, on payment of the stamp duty under the Kerala Stamp Act. A document which cannot be legally executed at all, like a unilateral cancellation deed of a sale deed, cannot be registered even if the executant thereof is prepared to pay the stamp duty under Art.21 of the Kerala Stamp Act. An argument may be put forward that it is not necessary for the Sub Registrar to enquire into the question of validity of a document and that he is bound to register the document if proper stamp duty is paid. This argument is based on a misconception. It is not the duty of the Sub Registrar to register every document presented before him for registration, unmindful of its validity and legality. Only if a valid document is duly executed and presented for `W.P.(C).No.` 15299 `/2014` ## -:5:- registration, the Sub Registrar is bound to register the document. Part XII of the Registration Act containing Ss.71 to 77 would clearly indicate that there is no duty cast on the Registrar to register a document which is not legally executable and registrable.” _(see para 15)_ The above judgment was also affirmed in appeal _{see_ _**2011 (3) KLT SN 75** }._ 9. When an executant of a document denies that the property, which is subject matter of the document, is a government land, the Registrar, cannot deny registration unless he forms an opinion with reference to prior records available or maintained at Registrar's office or with reference to any other valid order passed by the competent authority, that the property belongs to the government. Merely because property is located at Devikulam, the Registrar cannot peremptorily insist for a noobjection certificate. There is nothing on the face of Section 71(3) to indicate that a no-objection certificate should be insisted for transfer of any property located at Devikulam Taluk. It is only when a party admits that the property belonged to the government or when an opinion is formed by the registering authority based on an enquiry as mentioned in Sections 71 to 77 of the Registration Act that property belongs to the government, a need to have no-objection certificate arises. `W.P.(C).No.` 15299 `/2014` -:6:- 10. Based on the discussion as above, the following directions can be issued: (i) The respondent/Registering authority shall not insist for noobjection certificate from the government unless executant/s admit that property involved in the document belongs to the Government or it forms an opinion in the enquiry conducted under Sections 71 to 77 of the Registration Act, 1908 that property belongs to the government. (ii) Consequently, there shall be a further direction to the registering authority to accept the document executed by the petitioner for transferring the property mentioned as above for registration unless it forms an opinion that above property belongs to the government and it requires no-objection certificate. (iii) Needful shall be done by the competent juridictional registering authority within a period of two weeks on presentation of document by the petitioner. The writ petition is disposed of as above. ## **Sd/-** ## **A.MUHAMED MUSTAQUE, JUDGE** ms