Sri Mohandas N.S. v. The Thahasildar, Kanayannur Taluk Office, Kochi and The Village Officer, Ernakulam Village, Kochi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940** ## **WP(C).No. 4284 of 2019** ## **PETITIONER:** ## **SRI.MOHANDAS N.S., AGED 48 YEARS,** **SON OF LATE MR.M.G.S. MENON, RESIDING AT PRAJANI, ERATTAKULANGARA ROAD, PACHALAM.P.O., KOCHI-682012 IN ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.ANIL S.RAJ,SMT.K.N.RAJANI, SRI.SAJEN THAMPAN, SMT.P.RADHIKA RAJASEKHARAN** ## **RESPONDENTS:** **1 THE THAHASILDAR, KANAYANNUR TALUK OFFICE, PARK AVENUE, KOCHI, PIN-682011, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2 THE VILLAGE OFFICER, ERNAKULAM VILLAGE, PARK AVENUE, KOCHI, PIN-682011, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------- ## W.P.(C) No.4284 of 2019 --------------------------------Dated this the 13[th] day of February, 2019 ## J U D G M E N T The prayers in this Writ Petition (Civil) are as follows: - _"_ - _i. writ, order or direction in the nature of Mandamus, or such other appropriate writ, order or direction directing the 2[nd] respondent to effect transfer of registry of the petitioner's property covered by Ext.P1 sale deed, effect mutation in his name and thereafter accept land tax with respect thereof without insisting on purchase certificate or other documents sought for in exhibit P5._ - _ii. Such other appropriate order or direction sought for in the course of the proceedings._ - _iii. Direct the 2[nd] respondent to pay costs of the above proceedings."_ 2. Heard Sri.Anil S.Raj, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. It is stated that the petitioner is the owner in possession of the property covered by Ext.P-1 registered sale deed No.1838 of 2017 of SRO, Ernakulam. After execution and registration of Ext.P-1 sale deed, the epetitioner has submitted Ext.P-3 application dated 28.10.2017 before the 2[nd] respondent Village Officer, Ernakulam, with the requisite documents for grant W.P.(C).No.4284/2019 ..3.. of mutation, transfer of registry, acceptance of basic land tax and also for issuance of possession certificate. Though the 2[nd] respondent has inspected the property, he has refused to accept the application on the ground that the requisite purchase certificate issued under the Kerala Land Refoms Act, 1963, is not produced along with the application and the petitioner has been compelled to send the application for mutation along with requisite documents as per Ext.P-4 covering letter dated 18.11.2017 by registered post. That the 2[nd] respondent Village Officer has again refused to entertain the request at Ext.P-3 application for mutation, etc, on the ground of want of certificate evidencing Janmam rights. It is in the light of these factual averments that the petitioner has filed the instant writ petition with the aforementioned prayers. 4. It is also submitted by Sri.Anil S.Raj, learned counsel appearing for the petitioner that the petitioner has already set in motion the requisite application for issuance of purchase certificate in respect of the property covered by Ext.P-1 deed and that the W.P.(C).No.4284/2019 ..4.. process of enquiry by the competent revenue officials concerned, registration of the proceedings and finalisation of the same for the issuance of the purchase certificate by the Land Tribunal concerned are all time consuming process and that the said process would take at least about an year and a half, etc. 5. Having regard to the facts and circumstances disclosed in this case and after having heard both sides, this Court is of the considered view that it is totally beyond the domain and province of the 2[nd] respondent Village Officer to insist that he would consider the application of mutation, transfer of registry only if land holder is able to produce purchase certificate issued under Sec.72K of the Kerala Land Reforms Act, 1963. It is not understandable to this Court as to the legal basis for the 2[nd] respondent to take such a strange stand. The 2[nd] respondent has to bear in mind that he is discharging the duties and functions under the Kerala Land Tax Act and the Kerala Land Tax Rules framed thereunder as well as the Transfer of Registry Rules, 1966, for the purpose of mutation and transfer of registry, which is only a W.P.(C).No.4284/2019 ..5.. limited arrangement for fiscal purposes inorder to ensure timely collection of land revenue in respect of subject property from the land holder concerned. 6. Further it has been held by the Apex Court and the various High Courts in a catena of rulings as in _**Surney v. Inder Kaur (AIR 1996 SC 2823),**_ that grant of mutation will not convey title in favour of the person in whose name the mutation is made and that mutation of property in the revenue records will not create or extinguish title, nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. It appears that the petitioner's immediate predecessor-in-interest had obtained the subject property on the basis of Ext.P-2 registered sale deed No.2024/1979 dated 30.5.1979 of SRO, Ernakulam. The prior title of the predecessor prior to the one in Ext.P-2 is also recited in Ext.P-2 as registered sale deed No.2273/1957 of SRO, Ernakulam on the basis of which the said person viz, Sri.Bhaskara Menon @ K.B.Menon had effected the property. It appears that none of the predecessors W.P.(C).No.4284/2019 ..6.. had formally mutated the property in their respective names and though basic land tax has been paid by them, it was paid in the name of the erstwhile Janmi/land holder, viz, the Devaswom concerned. True even if there is a requirement for perfecting the title of the petitioner by securing a purchase certificate under Sec.72K of the Kerala Land Reforms Act, that cannot be the basis for denying mutation and transfer of registry and to accept basic land tax from the petitioner who is the present land holder, as understood in Sec.3(3) of the Kerala Land Tax Act as otherwise it would amount to loss of revenue to the public exchequer. 7. The Supreme Court has even recently in the judgment dated 5.2.2019 has reiterated the above said elementary legal principle. 8. In the light of these aspects, it is ordered that the refusal on the part of the 2[nd] respondent Village Officer to mutate and to accept basic land from the petitioner in respect of the subject property covered by Ext.P-1 registered sale deed is illegal and ultra vires. Accordingly it is ordered that the 2[nd] respondent Village Officer will immediately take up the request made by the W.P.(C).No.4284/2019 ..7.. petitioner in Ext.P-3 application dated 28.10.2017 and after affording reasonable opportunity of being heard to the petitioner will consider said request for grant of mutation, transfer of registry and acceptance of basic land tax in respect of subject property covered by Ext.P-1 deed and also for issuance of possession certificate and will grant the said request within two weeks from the date of production of a certified copy of this judgment, if it is otherwise in order. 9. However it is made clear and it is ordered that the 2[nd] respondent Village officer cannot refuse those requests on the ground that the petitioner has to necessarily produce purchase certificate for the subject property, etc. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C).No.4284/2019 ..8.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF SALE DEED NO.1838 OF 2017 OF ERNAKULAM SRO DATED 22.5.2017.** - **EXHIBIT P2 TRUE COPY OF SALE DEED NO.2024/1979 OF ERNAKULAM SRO DATED 30.5.1979.** **EXHIBIT P3 TRUE COPY OF APPLICATION SUBMITTED BY PETITIONER TO THE 2ND RESPONDENT DATED 28.10.2017.** **EXHIBIT P4 TRUE COPY OF COVERING LETTER SENT BY PETITIONER TO THE 2ND RESPONDENT DATED 18.11.2017.** - **EXHIBIT P4 A TRUE COPY OF POSTAL ACKNOWLEDGMENT CARD EVIDENCING RECEIPT OF EXHIBIT P4 BY THE 2ND RESPONDENT DATED 20.11.2017.** - **EXHIBIT P5 TRUE COPY OF LETTER BEARING NO.687/17 ISSUED BY 2ND RESPONDENT TO PETITIONER DATED 8.12.2017.** - **EXHIBIT P6 TRUE COPY OF APPLICATION SUBMITTED BY PETITIONER TO THE 2ND RESPONDENT DATED 31.10.2017.** - **EXHIBIT P7 TRUE COPY OF REPLY OBTAINED BY THE PETITIONER UNDER RTI ACT FROM THE PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE 2ND RESPONDENT DATED 13.11.2017.** - **EXHIBIT P8 TRUE COPY OF REPLY OBTAINED BY THE PETITIONER UNDER RTI ACT FROM THE PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE 2ND RESPONDENT DATED 16.11.2016.** **EXHIBIT P9 TRUE COPY OF EXTRACT FROM THE BASIC TAX REGISTER MAINTAINED BY THE 2ND RESPONDENT DATED NIL.**