RANI GOPI v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** ## **WP(C).No.13644 OF 2020(E)** ## **PETITIONER:** **RANI GOPI AGED 60 YEARS W/O.LATE GOPI, PURATHEPADI, MARADU VILLAGE, MARADU.P.O., ERNAKULAM DISTRICT-682040.** **BY ADVS. SRI.PEEYUS A.KOTTAM SHRI. HRITHWIK D. NAMBOOTHIRI** ## **RESPONDENTS:** **1 STATE OF KERALA, REP. BY SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, ANNEX, THIRUVANANTHAPURAM-695001. 2 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN-682030. 3 DISTRICT SURVEY SUPERINTENDENT, COLLECTORATE, CIVIL STATION, KAKKANAD-682030. 4 THE TAHSILDAR, TALUK OFFICE, KANAYANNUR, PIN-682011. 5 VILLAGE OFFICER, MARADU VILLAGE, PIN-682040.** ## **SMT MABLE C KURIAN, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13644 OF 2020(E)** **2** ## **JUDGMENT** The instant writ petition is filed by the petitioner herein seeking to set aside Ext.P3 order passed by the 2nd respondent on 27.3.2007 as per which the mutation pertaining to property comprised in Re-Survey No.358/20, 21, 22 and 23 which stood in the name of Mani, Thresiamma and Sukumaran was cancelled with a further direction that mutation be effected in the name of a certain P.J.Mary. 2. It is the case of the petitioner herein that she along with her husband Sri.Gopi are the owners in title and possession of property having an extent of 1.703 cents falling in Re-Survey No.358/2020 in Block No.13 of Maradu Village. The aforesaid property was acquired by the petitioner and her husband on the strength of Ext.P9 deed dated 31.5.2003. It is contended that a residential building bearing Door No.21/79 of the Maradu Municipality is also situated in the said property. She states that she has been remitting land tax in respect of the property as is evident from Exts.P1 and P1(a). She has also been paying property tax to the Local Self Government Institution as is evident from Ext.P1(b). 3. The petitioner contends that she wanted to put up a small bathroom for which she was asked to produce the latest land tax receipts. On 5.4.2011, she submitted an application before the District Collector **WP(C).No.13644 OF 2020(E)** **3** seeking a direction to the 2nd respondent to permit her to remit land tax. It was only then that she was informed that Registry of Sy. Nos. 358/20, 21, 22 and 23 had been transferred in the name of Sri. Job, S/o. P.E.Varkey pursuant to Ext.P3 order passed by the District Collector in compliance of the directions issued by this Court vide Ext.P4 judgment. According to the petitioner, the learned Single Judge of this Court, while rendering Ext.P4 judgment, had only directed that Exhibit P4 and P5 communications produced in the said writ petition be brought to its logical conclusion within a time frame. It is contended that Exhibit P4 is a letter issued by the RDO to the petitioner therein and Exhibit P5 is a letter issued by the RDO to the District Survey Superintendent, both of which are dated 24.1.2006. However, there was a further direction to the respondents therein to pass orders only after hearing all concerned which would include the petitioner herein as well. Her grievance is that despite issuance of such directions by this Court, the petitioner was not heard by the 2nd respondent and on that sole ground, Ext.P3 order is liable to be overturned. On receipt of the said communication, the petitioner approached the Munsiff Court, Ernakulam and instituted O.S.No.684/2017 seeking inter alia to declare the proceedings of the District Collector regarding the correction of the Tandaper in the Basic Tax Register in the name of the aforesaid Job is illegal and also for a mandatory injunction commanding the defendants in the said suit to accept tax from the petitioner for the scheduled property **WP(C).No.13644 OF 2020(E)** **4** from 2006-07 onwards. She would contend that a written statement has been filed by the aforesaid Job before the Munsiff Court, a copy of which is produced as Ext.P8 wherein it is stated in paragraph 6 that though the property was transferred into his name on the strength of a sale deed, the possession was not handed over and later the aforesaid Smt.P.J.Mary had cancelled the sale deed vide deed No.916/2010 dated 31.3.2010. The petitioner would refer to Ext.P2 communication issued to the petitioner by the District Survey Superintendent on 25.5.2017 wherein it is emphatically stated that even on that date, the petitioner was in possession of the property. It is in the afore circumstances that the petitioner is before this Court seeking the following reliefs. i) To call for the entire records leading to Ext.P3 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. ii) Issue a writ of mandamus or any other appropriate writ, order or direction thereby command the respondents 2 to 5 to restore the Thandaper No.7031 which stands in the name of the petitioner pertaining to her property having 0.70 ares in Re-Sy. No.358/20 of Maradu Village and allow the petitioner to pay the property tax. 4. A counter affidavit has been filed by the 2nd respondent wherein it is stated that the petitioner has been remitting land tax in Tandaper No.7031 in respect of property comprised in Re-Survey No.358/10 of Maradu Village till 2005-2006. Thereafter, she was not permitted to remit land tax in view of Ext.P3 proceedings of the District Collector dated **WP(C).No.13644 OF 2020(E)** **5** 27.3.2007. It is stated that the said proceedings were issued in compliance of judgment of this Court in W.P.(C) No.14591 of 2006. It is further stated that as per the current village records, the Tandaper of Survey No.358/20, 21, 22 and 23 has been transferred to Sri. Job, S/o. P.E.Varkey, Kottayil house, Maradu Village. It is further contended that persons similarly placed as the petitioner herein had earlier approached this Court and had challenged Ext.P3 order passed by the District Collector. By Ext.R2(a) judgment dated 19.12.2007, this Court refused to interfere and the parties were relegated to the Civil Court to seek appropriate reliefs. It is further contended that the petitioner has approached the Civil Court seeking the very same relief and in that view of the matter, there will be no justification to intervene in a writ petition filed under Article 226 of the Constitution of India. 5. In the course of proceedings, this Court had directed the learned Government Pleader to get instructions as to whether Smt.P.J.Mary is alive or whether she has any legal heirs. The learned Government Pleader has filed a memo along with a report of the Village Officer, Maradu. In the said report, it is stated that Smt.P.J.Mary along with her sister had resided within the limits of Manakunnam Village and both of them were unmarried. It is further stated that Smt. P.J.Mary and her sister are now no more. 6. I have considered the submissions advanced and have **WP(C).No.13644 OF 2020(E)** **6** anxiously perused the entire records. 7. The only contention advanced by Sri. Peeyus A Kottam, the learned counsel appearing for the petitioner is that before passing Ext.P3 order, the petitioner was not afforded an opportunity of being heard. 8. It is borne out from the records that Ext.P3 order was passed pursuant to directions issued by this Court in Ext.P4 judgment. Paragraph No. 2 of the judgment is extracted below for convenience. “2. The learned Government Pleader on the strength of the counter affidavit stated to be filed by him submits that since other persons are in possession of the property, the remedy available to the petitioner is to file a suit. I am of the opinion that after having issued Exts.P4 and P5 they have a duty to take appropriate proceedings to its logical conclusion. If in that process it is necessary to hear other persons who are in possession of the property, they may do so. But they shall complete proceedings initiated by Exts.P4 and P5 expeditiously. In the above circumstances, I direct the respondents to take appropriate proceedings as contemplated in Exts.P4 and P5, after hearing all persons concerned as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. 9. It was in purported compliance of Ext.P4 that Ext.P3 was passed. Ext.P1(b) building tax receipt and Ext.P2 report of the District Survey Superintendent would reveal in emphatic terms that the petitioner is in possession of the property even now. Even in the counter affidavit, the aforesaid fact is reiterated. The respondents have no case that before passing Ext.P3 order, the petitioner herein was afforded an opportunity of **WP(C).No.13644 OF 2020(E)** **7** being heard. Of course, it is contended that on an earlier occasion, when persons similarly placed as the petitioner had approached this Court challenging the order, this Court had refused to interfere. Ext.R2(a) is the judgment rendered by this Court in W.P.(C) Nos.12843 and 11483 of 2007. In paragraph No.4 of the judgment, it is mentioned that the District Collector had issued notices to the petitioners therein and they were heard by the District Collector before passing adverse orders against them. However, in the instant case, there is no case for the respondents that the petitioner was afforded an opportunity of being heard. 10. As held by the Apex Court in **Union of India v. Tulsiram Patel[1]** , the right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups against whom decisions taken by public authorities operate, to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons. The instrumental facet of the right of hearing consists in the means which it affords of assuring that the public rules of conduct, which results in benefits and prejudices alike, are in fact accurately and consistently followed. The records clearly show that the petitioner was not granted a pre-decisional hearing before ordering resumption and refixation of rent as mandated under the Rules. 1 [(1985) 3 SCC 582] **WP(C).No.13644 OF 2020(E)** **8** 11. The mere fact that the petitioner has instituted a suit as O.S.No.684 of 2017 seeking for a declaration that the correction of Thandaper was illegal and for a further direction to direct the respondents to receive basic tax is no reason to refuse interference particularly when, the petitioner has made out a case that the impugned order was passed in clear violation to the principles of natural justice. In that view of the matter, I am of the considered opinion that Ext.P3 warrants interference. Ext.P3 will stand set aside insofar as the petitioner is concerned. The 2nd respondent shall reconsider the issue afresh with notice to the petitioner and affected parties, if any, including Sri. Job Varkey, S/o. P.E.Varkey and the legal heirs of Smt. P.J.Mary, if any, and take a fresh decision expeditiously, at any rate, within a period of four months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition along with this judgment before the respondents to ensure compliance. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** sru **WP(C).No.13644 OF 2020(E)** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR 0.70 ARES OF PETITIONER'S PROPERTY IN SY.NO.358/20 UPTO 2003-2004 IN THANDAPER NO.7031.** - **EXHIBIT P1(A) THE TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR 0.70 ARES OF PETITIONER'S PROPERTY IN SY.NO.358/20 UPTO 2005-2006 IN THANDAPER NO.7031.** - **EXHIBIT P1(B) THE TRUE COPY OF THE PROPERTY TAX FOR THE PETITIONER'S BUILDING NO.21/79 PAID FOR THE YEAR 2018-2019.** - **EXHIBIT P2 THE TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 25.5.2017.** - **EXHIBIT P3 THE TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR BEARING NO.L3-1485/06 DATED 27.3.2007.** - **EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT IN WPC.NO.14591/2006 DATED 25.9.2006.** - **EXHIBIT P5 THE TRUE COPY OF THE STATEMENT SHOWING SUB DIVISION IN MARADU VILLAGE AND DETAILS OF THE PERSONS WHO ARE IN POSSESSION OF THE PROPERTY IN RESY.NO.358/20, 21, 22 AND 23.** - **EXHIBIT P6 THE TRUE COPY OF THE PLAINT IN O.S.684/2017 BEFORE THE HON'BLE MUNSIFF COURT, ERNAKULAM.** - **EXHIBIT P7 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 TO 4 IN O.S.NO.684/2017.** **EXHIBIT P8 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 5TH DEFENDANT IN THE SUIT. EXHIBIT P9 TRUE COPY OF THE TITLE DEED NO.2216/2003 DATED 31/5/2003 OF MARADU SRO SHOWING OWNERSHIP OF THE PETITIONER OVER THIS PROPERTY HAVING AN EXTENT OF 1.703 CENTS OF MARADU VILLAGE** **WP(C).No.13644 OF 2020(E) 10** |**EXHIBIT P10**|**TRUE COPY OF THE PETITIONER'S PRIOR**| |---|---| ||**TITLE DEED NO.262/1989 DATED 1/2/1989**| ||**EXECUTED BY KODIYAN, KUMARAN AND SARADA**| ||**IN FAVOUR OF MANI**| |**EXHIBIT P11**|**TRUE COPY OF PRIOR TITLE DEED BEARING**| ||**NO.1632/1988 EXECUTED BY THRESIA IN**| ||**FAVOUR OF KODIYAN, KUMARAN AND SARADA**| |**RESPONDENTS EXHIBITS:**|| |**EXHIBIT R2 A**|**THE TRUE COPY OF THE JUDGMENT OF**| ||**HONOURABLE COURT DATED 19.12.2007**|