Rosamma Michael v. Village Officer, Ennakad, Chengannur and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938** **WP(C).No. 30739 of 2016 (N)** **----------------------------** ## **PETITIONER:** ## **----------** **ROSAMMA MICHAEL, AGED 41 YEARS, W/O. MICHEAL VARGHESE, PUTHENPARAMBIL HOUSE, PERINGILIPURAM P.O, CHENGNNUR TALUK, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.SAJEEVAN KURUKKUTTIYULLATHIL SMT.SARITHA THOMAS** ## **RESPONDENT(S):** - **--------------** **1. THE VILLAGE OFFICER, ENNAKANAD, CHENGANNUR. ALAPPUZHA DISTRICT- 689 007.** **2. THE REVENUE DIVISIONAL OFFICER, CHENGANNUR, ALAPPUZHA DISTRICT- 689 001.** - **ADDL R3 IMPLEADED** **3. THOMAS ALEX, S/O THOMAS, MANKATTIL THARAYIL VEEDU,** **ULUNTHY,PERINGILIPURAM P.O. ENNAKKANAD VILLAGE, CHENGANNUR TALUK.** - **ADDL R3 IS IMPLEADED AS PER ORDER DATED 29.09.2016 IN IA.NO 14942/2016.** - **R1,R2 BY SENIOR GOVERNMENT PLEADER SRI T.K.ARAVINDA KUMAR BABU R3 BY ADVS. SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-11-2016,ALONG WITH WPC NO.34978/2016 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 30739 of 2016 (N)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXT. P1 TRUE COPY OF THE SALE DEED BEARING NO. 693/2016 OF MANNUR SUB REGISTRY. EXT. P2 TRUE COPY OF THE TAX RECEIPT 2.6.2016 BEARING NO. 3413880. EXT. P3 TRUE COPY OF THE ORDER DATED 14.7.2016 ISSUED BY THE 1ST RESPONDENT. EXT. P4 TRUE COPY OF THE APPEAL ON 18.7.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT. P5 TRUE COPY OF THE ORDER DATED 12.8.2016 ISSUED BY THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS -----------------------** **EXT. R3(A) COPY OF SALE DEED NO.971/2011 OF MANNAR SRO. EXT. R3(B) COPY OF SETTLEMENT DEED NO.719/2012 OF MANNAR SRO. EXT. R3(C) COPY OF O.P NO.519/2016. EXT. R3(D) COPY OF ORDER DATED 13.6.2016 PASSED BY THE FAMILY COURT,MAVELIKKARA IN I.A.NO.1245/2016 IN O.P.(G&W) NO.519/2016. EXT. R3(E) COPY OF REPRESENTATION DATED 25.5.2016 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. EXT. R3(F) COPY OF REPRESENTATION DATED 26.5.2016 SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR.** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **SHAJI P. CHALY, J.** ## **---------------------------------------** ## **W.P.(C). Nos. 30739 & 34978 OF 2016** **----------------------------------------** Dated this the 07[th ] day of November, 2016 ## **JUDGMENT** Captioned writ petitions are materially connected. Therefore, I heard them together and propose to pass a common judgment. W.P.(C). No. 30739/2016 Petitioner is a bonafide purchaser for value, of an extent of 2.72 ares of property lying in Re- Survey No.270/2 of Ennakkad Village, evident from Ext. P1. Petitioner filed an application for mutation which was considered and dismissed by the first respondent, against which petitioner has raised a challenge before the appellate authority, namely, Revenue Divisional Officer. Challenge thereto in appeal, was also dismissed by the second respondent as per Ext. P5. The reason assigned in both the orders is that since W.P.(C). Nos. 30739 & 34978 OF 2016 2 there is an injunction order passed by the Family Court, Mavelikkara, transfer of registry cannot be effected. According to the petitioner, even if there is an order of injunction, the mutation is to be effected on the strength of title. When the title is remaining with the petitioner, the authority is bound to effect transfer of registry, as provided under the Transfer of Registry Rules. It is in this background seeking to quash the orders passed by the primary as well as the appellate authority, this writ petition is filed. ## W.P.(C).No. 34978/2016. In this writ petition, petitioner is the husband of the sixth respondent. Petitioner is the owner of 5.70 Ares of property and residential building situated in Re-survey No. 270/2 of Ennakkad Village, Alappuzha District. Petitioner has executed Ext. P2 settlement deed, in favour of his wife, namely, sixth respondent for enjoyment of the aforesaid property. The sixth respondent without the knowledge and W.P.(C). Nos. 30739 & 34978 OF 2016 3 consent of the petitioner, executed sale deed Nos. 691/2016 and 693/2016 of SRO, Mannar, in favour of respondents 7 and 8. Now, respondents 7 and 8 are attempting to effect mutation of the aforesaid property in their favour. It is in this background seeking a direction to respondents 2 to 5 not to effect mutation of property described above, this writ petition is filed. 2. Petitioner herein has filed counter affidavit in the other writ petition almost in similar lines and basically contending that a civil suit is pending by and between the parties before the Family Court, Mavelikkara to set aside the sale. Petitioner has also secured Ext. P4 order of injunction, wherein respondents 6 to 8 are restrained from evicting the petitioner from petition schedule property without due process of law until further orders. 3. Heard learned counsel for the petitioners in both the writ petitions and learned Government Pleader appearing for the official respondents, and perused the W.P.(C). Nos. 30739 & 34978 OF 2016 4 documents on record and the pleadings put forth. 4. The question that emerges for consideration in these writ petitions is whether a pendency of a litigation is a bar for the authority under the Transfer of Registry Rules, to effect mutation of the property. The issue was considered by this Court in ' **Thulasibhai C.C. v. State of Kerala and Others'** [2010 (4) KHC 142], ' **Sudan v. State of Kerala'** [2013 (4) KLT 563] and ' **Nevin Raju v. S. Basheer and Others'** [2015 KHC 3676] and held that mere pendency of a litigation or any other coercive proceeding is not a ground for the authority under the Transfer of Registry Rules, to restrain themselves from effecting mutation of the property. However, the primary authority as well as the appellate authority have passed orders quite contrary to the principles of law laid down by this Court, with respect to the same issue. Therefore, in my considered opinion the orders passed by the authorities cannot be sustained under law, being illegal and arbitrary. W.P.(C). Nos. 30739 & 34978 OF 2016 5 5. The counsel for the petitioner in W.P.(C).No. 34978/2016 has also a case that since there is a revisional remedy for the petitioner in W.P.(C).No. 30739/2016 before the District Collector, the writ petition is not maintainable. However, I find from the orders passed by the primary as well as appellate authority, the appellate authority as well as the primary authority have totally ignored the provisions of the Transfer of Registry Rules and the proposition of law laid down by this Court in various judgments. Therefore, this Court is vested with ample powers to entertain the writ petition and pass orders on merits. 6. Therefore, I set aside Ext.P5 order (in W.P.(C.) No. 30739/2016) passed by the Revenue Divisional Officer, Chengannur dated 12.08.2016 and direct the said authority to reconsider the issue after providing an opportunity of hearing to the petitioners in both the writ petitions and take a decision within four months from the date of receipt of a copy of this judgment. I also make it clear that every W.P.(C). Nos. 30739 & 34978 OF 2016 6 administrative and quasi judicial authorities are bound by the proposition of law laid down by this Court. Therefore, there will be a direction to the appellate authority to take note of any decision produced by the respective parties with respect to the same and pass appropriate orders, in accordance with law. Consequentially, the reliefs sought for in W.P.(C). No. 34978/2016 has become redundant and inconsequential, accordingly it is dismissed, leaving open the liberty to contest the proceedings as directed above. W.P.(C). No. 30739/2016 is disposed of and W.P.(C). No. 34978/2016 is dismissed. **SHAJI P. CHALY JUDGE** DCS