IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 34577 of 2008(N) ---------------------------------------- PETITIONER(S): -------------------------- KURIAKOSE ELIAS TRUST FOR COMMUNICATION AND DEVELOPMENT, REG. NO. 408/1980, REPRESENTED BY ITS PRESIDENT, FR. ABRAHAM SEBASTIAN, CMI, CHRIST NAGAR ASHRAM, KOWDIAR.P.O, THIRUVANANTHAPURAM. BY MR.R.D.SHENOY, SENIOR ADVOCATE, BY ADV.MR.ROY CHACKO. RESPONDENT(S): --------------------------- 1. THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE JOINT SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE VILLAGE OFFICER, NEMOM, THIRUVANANTHAPURAM DISTRICT. 4. SRI.L. BINU, S/O. LAKSHMANAN NADAR, T.C 51/267, PAPPANAMCODE, THIRUVANANTHAPURAM DISTRICT. *ADDL.R5 TO R11 ARE IMPLEADED: R5. ABDUL HASSAN, S/O. SYED MOHAMMED KANNU, THEKKUMBAGATH VEEDU, PACHALLOOR P.O., PANATHARA – VELITHALA, THIRUVALLAM, THIRUVANANTHAPURAM DISTRICT. Kss ..2/- ...2..... WPC.NO.34577/2008 N R6. JALALUDEEN, S/O. SYED MOHAMMED KANNU, THEKKUMBAGATH VEEDU, PACHALLOOR P.O., PANATHARA, VELITHALA, THIRUVALLAM, THIRUVANANTHAPURAM DISTRICT. R7. ABDUL RASHEED, S/O. SYED MOHAMMED KANNU, THEKKUMBAGATH VEEDU, PACHALLOOR P.O., PANATHARA, VELITHALA, THIRUVALLAM, THIRUVANANTHAPURAM DISTRICT. R8. NAZRUDDIN, S/O. SYED MOHAMMED KANNU, THEKKUMBAGATH VEEDU, PACHALLOOR P.O., PANATHARA, VELITHALA, THIRUVALLAM, THIRUVANANTHAPURAM DISTRICT. R9. HASBA BEEVI, S/O. SYED MOHAMMED KANNU, THEKKUMBAGATH VEEDU, PACHALLOOR P.O., PANATHARA, VELITHALA, THIRUVALLAM, THIRUVANANTHAPURAM DISTRICT. R10. HAMLATH BEEVU, S/O. SYED MOHAMMED KANNU, THEKKUMBAGATH VEEDU, PACHALLOOR P.O., PANATHARA, VELITHALA, THIRUVALLAM, THIRUVANANTHAPURAM DISTRICT. R11. SENIYA BEEVI, D/O. SYED MOHAMMED KANNU, THEKKUMBAGATH VEEDU, PACHALLOOR P.O., PANATHARA, VELITHALA, THIRUVALLAM, THIRUVANANTHAPURAM DISTRICT. (*ADDL.R5 TO R11 ARE IMPLEADED AS PER ORDER DTD. 30/01/2009 IN I.A.NO.1218/09) R1 TO R3 BY GOVERNMENT PLEADER MR. M.R. SABU R4 BY ADV. MR.V.N.GOPALAKRISHNAN NAIR ADDL.R5 TO R11BY ADV.MR.D.KISHORE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34577/2008 N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.S.NO.1117/1968 DTD.4/4/1998. EXT.P2: COPY OF THE DECREE DTD. 4/12/2004 IN A.S.NO.246/99. EXT.P3: COPY OF THE AFFIDAVIT FILED BY M.G.MEENAKSHY, THE POWER OF ATTORNEY HOLDER OF PLAINTIFFS 1 TO 3 IN O.S.NO.417/1988 STATING ON OATH THAT THE PARTIES HAVE SETTLED THE DISPUTES OUT OF COURT. EXT.P4: COPY OF THE COMPROMISE PETITION FILED JOINTLY BY THE PLAINTIFFS AND THE 6TH DEFENDANT DTD. 31/1/2008. EXT.P5: COPY OF THE ORDER DTD. 5/09/2007 PASSED BY THE APPELLATE AUTHORITY IN A.A.NO.40/2005. EXT.P6: COPY OF THE PETITION NO.543/2008 DTD. 12/2/2008 FILED BEFORE THE R.D.O., THIRUVANANTHAPURAM BY 8 PERSONS. EXT.P6(A): COPY OF THE ENDORSEMENT DTD. 12/2/2008 MADE BY THE RDO ON EXT.P6 PETITION APPEARING ON PAGE 2 OF EXT.P6. EXT.P7: COPY OF THE REPORT DTD. 3/3/2008 SUBMITTED BY THE VILLAGE OFFICER, NEMOM. EXT.P8: COPY OF THE COMPLAINT DTD. 29/05/2008 WAS LODGED BEFORE THE S.I. OF POLICE, KARAMANA POLICE STATION BY THE PETITIONER. EXT.P9: COPY OF THE RECEIPT ISSUED BY THE KARAMANA POLICE STATION EVIDENCING RECEIPT OF THE PETITION DTD. 29/05/2008. EXT.P10: COPY OF THE COMMUNICATION DTD. 19/07/2006 ADDRESSED TO THE VILLAGE OFFICER, NEMOM BY THE ADDL.TAHSILDAR, THIRUVANANTHAPURAM. EXT.P11: COPY OF THE LEGAL OPINION OBTAINED BY THE 4TH RESPONDENT FROM THE GOVT. PLEADER. EXT.P12: COPY OF THE REPRESENTATION DTD. 8/04/2008 FILED BY THE PETITIONER BEFORE THE SECRETARY, DEPT. OF REVENUE, THE 2ND RESPONDENT. Kss ..2/- ..2...... WPC.NO.34577/2008 N EXT.P13: COPY OF THE JUDGMENT DTD. 21/05/2008 IN WP(C) NO. 12848/2008. EXT.P14: COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 5TH RESPONDENT. EXT.P15: COPY OF THE LOCATION CERTIFICATE ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXT.P16: COPY OF THE COVERING LETTER OF THE JUNIOR SUPERINTENDENT IN THE OFFICE OF THE DEPUTY COLLECTOR (LR), THIRUVANANTHAPURAM. EXT.P16(A): COPY OF THE REPORT DTD. 16/04/2007 OF THE VIGILANCE AND ANTI CORRUPTION BUREAU. EXT.P17: COPY OF THE NOTICE DTD. 25/10/2008 ISSUED FROM THE OFFICE OF THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE. EXT.P18: COPY OF THE ORDER DTD. 14/11/2008 OF THE PRINCIPAL SECRETARY. EXT.P19: COPY OF THE JUDGMENT IN WP(C) NO.28027/2004. EXT.P20: COPY OF THE ORDER IN CRP.NO.1912/96. EXT.P21: COPY OF THE DECLARATION GIVEN BY SRI.V.SUBRAMANIAN, S/O.LATE VENKITA SUBBAYYAR. EXT.P22: COPY OF THE KYCHIT EVIDENCING DELIVERY OF POSSESSION TO THE PETITONER THROUGH THE AMIN DEPUTED BY THE EXECUTION COURT IN O.S.NO.1060/08. EXT.P23: COPY OF THE ORDER DTD. 16/09/1996 IN CRP NO.1912/1996. EXT.P24: COPY OF THE REPORT OF THE AMIN DTD. 5/04/2004. EXT.P25: COPY OF THE COMMUNICATION SENT BY THE ADVOCATE COMMISSIONER TO THE VILLAGE OFFICER, NEMOM. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE RELEVANT PAGE OF THE SETTLEMENT REGISTRAR OF NEMOM TALUK. Kss ..3/- ....3...... WPC.NO.34577/2008 N EXT.R1(B): COPY OF O.S.NO.417/88 OF THE SUB COURT, THIRUVANANTHAPURAM HAD FILED SAROJAM, NARAYANAN, SUBRAMANIAM AND KRISHNAMOORTHY. EXT.R1(C): COPY OF REPORT OF THE VILLAGE OFFIER, NEMOM. EXT.R1(D): COPY OF LETTER OF THE ADDITIONAL TAHSILDAR, THIRUVANANTHAPURAM. EXT.R1(E): COPY OF THE VIGILANCE REPORT OF THE DEPUTY SUPERINTENDENT OF POLICE, VACB, THIRUVANANTHAPURAM. EXT.R5(A): COPY OF THE RELEVANT EXTRACT OF THE SALE DEED NO. 1654/08 DTD. 15/05/2008. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. --------------------------- W.P.(C) No.34577 of 2008 ------------------------------------ Dated this the 4th day of March, 2009 JUDGMENT Prayer in this writ petition is to quash Exhibit P18 order passed by the first respondent. 2. The facts of the case, to the extent it is relevant, are that the petitioner, a Trust, claims to have purchased 8.75 acres of land situated in Survey Nos. 86/1 and 86/2 of Nemom Village, Thiruvananthapuram Taluk by virtue of 18 sale deeds executed in 1981 by M/s. Krishnamoorthy, sarojam, Narayanan, and Subramanian, who are stated to be the legal representatives of late Shri. Venkita Subba Iyer. 3. It would appear from the pleadings that the 4th respondent in this writ petition, filed an application before the Land Tribunal claiming kudikidappu right in respect of a portion of the land and that the Land Tribunal had allowed the same in his favour. Against the aforesaid order, the petitioner herein had filed an appeal as A.A.No.40/2005 before the Appellate Authority, Alappuzha. As is seen in Exhibit P5 order dated W.P.(C) No.34577 /2008 2 5/09/2007 of the Appellate Authority, the dispute was settled between the parties. 4. It is stated that during the pendency of A.A. No. 40/2005, by order dated 1/9/2006, mutation in respect of 8.75 acres of land referred to above was effected in the name of the petitioner. It would also appear that during the pendency of A.A 40/2005, the 4th respondent made a complaint to the Vigilance Department against the mutation that was effected in the name of the petitioner. That complaint lead to a vigilance enquiry and ultimately Exhibit P16 report was submitted by the Vigilance and Anti-Correction Bureau. In the report certain irregularities have been pointed out and recommendation was made for cancellation of the mutation and also for initiating appropriate action against certain officials. 5. From the counter affidavit filed by the respondents, it would appear that acting upon the vigilance report and Exhibit P6 representation by the 4th respondent and Exhibit P7 report of the Village Officer, the District Collector ordered cancellation of mutation by his proceedings dated 16/02/2008. Though this W.P.(C) No.34577 /2008 3 order was not communicated to the petitioner, complaining that there was a proposal for cancellation of mutation effected in their favour, petitioner filed Exhibit P12 representation to the first respondent. Thereafter, they approached this Court and field W.P(C) No.12848/2008 and that writ petition was disposed of by judgment dated 21/5/08 directing the first respondent to consider and pass orders on Exhibit P12. Accordingly, the first respondent heard the parties and passed Exhibit P18 order concluding that the mutation in favour of the petitioner is improper and illegal and that the decision to cancel the mutation of the property in question was justified and therefore, the same was confirmed. It is challenging Exhibit P18 order referred to above, this writ petition has been filed. 6. The contention of the leaned Senior Counsel for the petitioner is that the mutation effected in their favour is legal and valid. It is contended that in support of their application for mutation, they had produced Exhibits P1 to P4 and also their title deeds. It is stated that mutation is for fiscal purposes and mutation effected will not affect the title claims of any one. Thus, W.P.(C) No.34577 /2008 4 according to him, the reasons which persuaded the collector or the Government to cancel mutation in their favour are totally erroneous and illegal. 7. On behalf of respondents 1 to 4, submission made by the learned Government pleader was that the cancellation of mutation was ordered in exercise of the powers under the Rule 18(iv) of Transfer of Registry Rules. It is stated that, while exercising this power, if the District Collector is satisfied that sufficient grounds exist it is open to the him to revise, cancel or alter any order passed by the Tahsildar exercising this powers under the Rules. It is stated that it was exercising this power, mutation was ordered to be cancelled and for the reasons stated in Exhibit P18, the said decision of the Collector was confirmed by the 1st respondent. 8. The case was contested by respondents 5 to 11 and they have filed a detailed counter affidavit. From the counter affidavit filed, it would appear that they claim to be the lineal descendants of one Smt. Vee Pathummal. According to them, her ancestor Sri. Syed Muhammed held title over these properties W.P.(C) No.34577 /2008 5 also and the same was recorded in the BTR register. Although, such claims are made, no document whatsoever has been produced. It is stated that the petitioner did not acquire title over any land and for that matter, even their vendor late Venkita Subbayyar or his legal representatives also had no title over the land. It is also stated that they have filed suit as O.P (pauper) No.23/08 before the Sub Court, Thiruvananthapuram seeking to set aside the 18 sale deeds in favour of the petitioner and for other consequential reliefs and that the same is pending. In so far as Exhibit P18 order passed by the 1st respondent is concerned, counsel for respondents 5 to 11 submits that the order effecting mutation in favour of the petitioner itself was erroneous and therefore, it is always open to the Government to correct the same. 9. Heard counsel appearing for the parties. 10. At the outset, I should record that the contention raised in this writ petition that the petitioner was heard by the Joint Secretary, Revenue Department, but Exhibit P18 order was passed by Principal Secretary to Government was not urged by W.P.(C) No.34577 /2008 6 the counsel for the petitioner. On the other hand he argued on the merits of the controversy. 11. In this writ petition, this Court is only concerned with the validity of Exhibit P18 order passed by the 1st respondent. The validity of Exhibit P18 will have to be judged on the basis of the sustainability of the reasons stated in the order itself. 12. Before I examine the validity of Exhibit P18, I shall make reference to the relevant provisions contained in Transfer of Registry Rules 1966, the effect of an order of mutation. Rule 16 of the Rules made it clear that the summary enquiry under the rules, is only an arrangement for fiscal purposes and does not affect the legal right of any person in respect of any land covered by the decision in Transfer of Registry cases. It is also clarified that question of legal right is always subject to the adjudication by Civil Court, and order of mutation will be revised from time to time in accordance with judicial decisions. This position has been further clarified by the Apex Court in State of U.P. Vs. Amar Singh etc[JT 1996(10)S.C. 43], where it was held that it is the settled law that mutation entries are only for the W.P.(C) No.34577 /2008 7 purpose of enabling the State to collect the land revenue from the person in possession, but it does not confer any title to the land. In Suraj Bhan and Others Vs. Financial Commissioner and Others [(2007)6 SCC 186], where contention was that mutation was got effected on the basis of a fabricated will. Answering the said plea, the Apex Court held as follows; “ So far as mutation is concerned, it is clear that entry has been made and mutation has been effected in revenue records by the Tahsildar on the basis of an application made by respondent 5 herein and his name has been entered in record-of-rights on the basis of the will said to have been executed by Ratni Devi. In our opinion, therefore, it cannot be said that by entering the name of respondent 5 in revenue records, any illegality had been committed by the Tahsildar. It is true that no notice was issued to the appellants but the Tahsildar had taken the action on the basis of will said to have been executed by deceased Ratni Devi in favour of respondent 5. The W.P.(C) No.34577 /2008 8 said order has been confirmed by the Collector as also by the Financial Commissioner. When the grievance was made against said action by filing a writ petition, the High Court also confirmed all the orders passed by the Revenue Authorities under the Act. We see no infirmity so far as that part of the order is concerned. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of -rights. It is settled law that entries in the revenue records or Jamabandi have only “fiscal purpose” i.e. payment of land revenue, and no owner ship is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram Vs. Hakam Singh). As already noted earlier, civil proceedings in regard to genuineness of will are pending with the High Court of Delhi. In the W.P.(C) No.34577 /2008 9 circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition.” (emphasis supplied) 13. In view of the above, it should be held that the title claim of respondents 5 to 11 or any body else or their contentions in the proceedings in O.P. (pauper) No.23/2008, cannot be affected in any manner, by the mutation that was effected in the Revenue Records by any of the findings in this Judgment. 14. Rule 3(a) of the Transfer of Registry Rules lays down the procedure to be followed in the case of transfer of registry based on voluntary transfer of title, on the basis of sale deed as in this case. In respect of such matters, Rule 7 provides that the Tahsildar shall forward the cases to the concerned Village Officer for preparing the statement in form A. It is on that basis, the Village Officer has to submit the report in terms of Rule 8. In this case, Exhibit P10, proceedings of the Additional Tahsildar makes reference to the report that was made by the Village Officer on 5/06/2006. In fact Exhibit R1(c), produced along with the counter W.P.(C) No.34577 /2008 10 filed by respondents 1 to 3 is another report of the Village Officer, Nemom dated 29/7/2006, which also does not support the case of respondents 5 to 11, that petitioner was not in possession of the land. 15. Once report of the Village Officer is received as above, the cases are to be classified in the manner as laid down in Rule 9. Rule 10 provides that cases which can be disposed of without any further enquiry, are to be classified as uncontested cases. Note to Rule 10 provides that cases of sale and other absolute transfer of land mentioned under Rule 3(a) will fall under the category of cases which can be disposed of without further enquiry. It is stated that in such cases, no enquiry is necessary and shall be disposed of accordingly. It is on the aforesaid basis that application in respect of the land purchased by the petitioner was dealt with and mutation was effected with effect from 1/9/2006. 16. It is true that Additional Respondents 5 to 11 raised a contention that enquiry on the application made by the petitioner, should have been conducted in terms of the general W.P.(C) No.34577 /2008 11 principles laid down in Rule 14 of the Transfer of Registry Rules. However, having regard to the Note to Rule 10 referred to above, I do not think Rule 14 has any relevance in an uncontested case of this nature. Rule 14 may be relevant in so far as the cases covered in Note 2 to Rule 10. 17. Having examined the scope of the Rules, I shall deal with the contention of the learned Government Pleader, that on 16/02/2008, the District Collector had passed orders for cancellation of the mutation. Though, he has no case that this order was communicated to the petitioner, according to him, the cancellation of mutation was ordered, exercising the power of the District Collector under rule 18(iv) of the Rules. A reading of Rule 18(iv) shows that if sufficient grounds exists, it shall be open to the District collector to revise, cancel or alter, on his own motion or otherwise, any decision or order passed by the Revenue Inspector, Deputy Tahsildar, Tahsildar or the Revenue Divisional Officer, within a period of one year from the date of such decision. Sub Rule (v) also provides that no revision shall however be entertained by the District Collector unless the W.P.(C) No.34577 /2008 12 parties have exercised the right of appeal prescribed under the rules. 18. In this case admittedly mutation in question was effected in the name of the petitioner by order dated 1/9/2006. Even according to the learned Government pleader its cancellation was by order dated 16/2/2008. Admittedly, none of the parties have exercised their right of appeal also. If that be so, the exercise of power by the District Collector was erroneous and without jurisdiction for the reason that the order of cancellation was beyond the one year specified in Rule 18(iv) and as none had excised their right of appeal. 19. Now coming to Exhibit P18, the irregularities noticed by the Vigilance and Anti Corruption Bureau for recommending cancellation of mutation of the property in question, contained in paragraph reads as under; “3. A surprise check was conducted by Vigilance and Anti-Corruption Bureau based on a complaint from one Shri.Binu and the following irregularities were noticed while granting “Pokkuvaravu” to the petitioner. W.P.(C) No.34577 /2008 13 i) An appeal petition is pending before the Appellate Tribunal, Alappuzha ii)A partition suit is pending before the Additional Sub Court, Thiruvananthapuram. iii)No documents have been produced to prove that the land owner Venkita Subramania Aiyer expired. No death Certificate is produced. iv)No documents have been produced to establish that Narayanan, Subramanian, Krishna Moorthi and Sarojam are the legal heirs.” 20. First reason stated is that appeal was pending before the Appellate Tribunal, Alappuzha. The appeal referred herein is A.A No.40/05, which as already noted, was settled out of court and Exhibit P5 dated 5/09/2007 was filed by the parties to the appeal. 21. The second reason stated is that a partition suit was pending before the Additional Sub Court, Thiruvanathapuram. The suit referred to is O.S. No.417 of 1988 filed by N. Raj Kumar and two others, who are the legal representatives of late W.P.(C) No.34577 /2008 14 Venkita Subbayyer. As can be from Exhibits P3 and P4, the suit in question was settled by a compromise petition dated 31/01/2008. 22. The 3rd reason raised in Exhibit P18 is that no documents have been produced to prove that the land owner late Venkita Subramania Aiyer expired and that death certificate was not produced. According to the petitioner, Exhibit P1, judgment in O.S. No.1117/1968 of the III Additional Munsiff Court, Thiruvananthapuram was produced and that a reading of the cause title in the judgment itself showed that Venkita Subbaiyyar had expired long prior to 4th April 1998, when the judgment was rendered and that it was his legal representatives who contested the suit. 23. The other reason stated is that no documents were produced to establish that V. Narayanan, V. Subramony, V. Krishna Moorthy, S. Sarojam are legal heirs. In so far as the correctness of this finding is concerned, first of all none of the legal heirs of Venkita Subbaiyyar has disputed the competence of these persons as legal heirs. Secondly, Exhibit R1(c) report W.P.(C) No.34577 /2008 15 submitted by the Village Officer, Nemon produced along with the counter affidavit filed by respondents 1 to 3, shows that even the Village Officer himself has found that these persons are legal heirs of late Venkita Subbaiyyar. 24. If the above is the factual position, the grounds mentioned in Exhibit P16 report of the Vigilance Department are of no substance. On account of the above reasons, I am also inclined to take the view that Exhibit P18 order has been issued on factually incorrect and non existing reasons. 25. Apart from the above, it is stated in para 7 of Exhibit P18 that the petitioner did not produce documents prior to 1981, original partition deed, Power of Attorney etc. First of all the 1st respondent has no case that these documents were required to be produced along with an application for Transfer of Registry. On going through the Rules, I do not find any provision requiring production of any of these documents. That apart, in view of the uncontested nature of the proceedings and that an order passed does not affect the title claim made by anyone, I do not think that the 1st respondent was justified in holding that the mutation W.P.(C) No.34577 /2008 16 effected is liable to be cancelled for this reason. For these reasons, I cannot sustain Exhibit P18 and Exhibit P18 will stand set aside. 26. As already clarified by me, the effect of the mutation granted in favour of the petitioner is only for fiscal purposes as provided in Rule 16. This will have no impact on the claim of title raised by the Additional respondents 5 to 11 or anybody else in respect of 8.75 acres of land covered by 18 sale deeds relied on by the petitioners. The Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE scm