IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 WP(C).No. 31193 of 2007(L) -------------------------- PETITIONER(S): --------------- JOHN MATHEW, AGED 46, S/O. M.K.JOHN, KIPPALLIL PUTHEN VEEDU, KUDASSANADU P.O., PALAMEL VILLAGE, MAVELIKKARA TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SAMUEL JOHN, S/O. L.JOHN, AGED 29 YEARS, VADAKKANAZHIKOM, NALLILA P.O., KOLLAM. BY ADV. SMT.T.S.MAYA (THIYADIL) SMT.C.VIJAYAKUMARI SMT.K.REENA RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE TAHSILDAR, KOTTARAKKARA, KOLLAM DISTRICT. BY GOVERNMENT PLEADER SRI.K.ARAVINDA KUMAR BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02 /2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31193 of 2007(L) PETITIONER'S EXTS: EXT.P1:- COPY OF THE SALE DEED NO.1663 OF 2005 EXT.P2:- COPY OF DECISION ISSUED BY RESPONDENT TO THE PETITIONER DTD.15.5.07 EXT.P3:- COPY OF REPLY FILED BY THE PETITIONER BEFORE THE RESPONDENT DTD.3.8.07 EXT.P4:- COPY OF LETTER ISSUED BY THE VILLAGE OFFICER VETTIKKAVALA VILLAGE TO THE PETITIONER DTD.10.12.2010 RESPONDENT'S EXTS: NIL /TRUE COPY/ SD/- P.A.TO JUDGE P.R.RAMACHANDRA MENON, J. ---------------------------------------- W.P.(C)No.31193 OF 2007 -------------------------------------------------- Dated this the 11th day of February, 2011 J U D G M E N T Petitioner, who is the owner of the property covered by Ext.P1 sale deed has approached this Court seeking for issuance of writ of mandamus directing the respondent to effect mutation of the property. 2. The petitioner purchased about 1.90 Hectors of land comprised in various Survey Numbers as borne by Ext.P1 sale deed bearing No.1663 dated 25.05.2005 of the Additional SRO, Kottarakara, from one Oommen Panicker. Ever since the said purchase, it is stated that the petitioner is enjoying the same with absolute ownership, exclusive possession and with clear and markable title. However, when the petitioner approached the concerned Village Officer for effecting mutation and to pay land tax, it was not favourably considered. Finally, Ext.P2 letter was issued by the Additional Tahsildar, Kottarakara, stating that the request of the petitioner could not be acceded to as the enquiry made through the Village Officer revealed that there was a liability in respect of the property as payable by the vendor to W.P.(C)No.31193 OF 2007 2 the Government and that the property was very much involved in revenue recovery proceedings. Met with the situation, the petitioner preferred Ext.P3 reply before the respondent stating that he is a bonafide purchaser of the property from the vendor; that he is not liable to satisfy the claim if any, of the defaulter / vendor and hence that necessary steps might be caused to be effected with regard to the change in registry in the Village / Revenue Records. 3. The respondent has filed a counter affidavit stating that the petitioner is not entitled to the relief sought for that the prior owner of the property was a defaulter for not having cleared the dues to the Government and that revenue recovery proceedings were there right from 2004 as revealed from various files bearing No.D5-7125/05, D2-1037/04, D2-1037/04, D2-10909/04, D2-10910/04, D2-15087/04, D2-15810/04 of Tahsildar, Kottarakara. It is also stated that the petitioner did not choose to verify the relevant records available with the Village Officer and as such, the petitioner cannot claim himself as a 'bonafide purchaser' of the property. It is also stated that there were 'six' revenue recovery cases pending against the prior owner, ie; vendor of Ext.P1 property, owning other extents W.P.(C)No.31193 OF 2007 3 of property as well, over which, there were orders of attachment issued by the Sub Court, Kottarakara and also the Munsiff's Court, Mavelikkara in various proceedings pending before the said Courts. The total liability of the defaulter is stated as nearly Rs.2,61,42,029/-. Referring to the above factual position, it is stated that the prayer of the petitioner to effect mutation in the name of the petitioner is not liable to be entertained and that the respondent has not violated any of the relevant provisions of law. 4. The petitioner has filed reply affidavit stating that the property, over which the attachment has been made is not the property that belongs to the petitioner and hence that the property covered by Ext.P1 is not liable to be proceeded against. Reliance is also sought to be placed on the decision rendered by a Division Bench of this Court in St.Arnold Divine Works Society v. State of Kerala 2006 (3) KLT S.N.No.67 (Page- 48). 5. The learned Government Pleader appearing for the respondent submits that the nature of the liability of the defaulter is very much discernible from Ext.P4 reply given by Public Information Officer of the Village Office, produced by the petitioner himself, along with I.A.No.143/2011. It is stated W.P.(C)No.31193 OF 2007 4 therein that the major portion of the liability constitutes Sales Tax arrears, Kerala Motor Transport Workers Welfare Fund, Motor Vehicles Taxation Act and the liability by virtue of the various Awards passed by the Motor Accidents Claims Tribunal. With regard to the liability involving the Sales Tax, the learned Government Pleader submits that Section 26 A of the K.G.S.T Act, which was incorporated in the statute with effect from 01.04.1993 stipulates that any conveyance of the property during the pendency of any proceedings under the 'Act' shall be void as against any claim in respect of any tax or any other sum payable by the accessee under the Act. This being the position, conveyance effected by the defaulter, who is the Vendor of Ext.P1, is of no effect as far as the liability to the Government is concerned. In the said circumstances, the plea if at all any that could be put forth referring to the status of the party as a bonafide purchaser, is stated as not acceptable in view of the decision rendered by a Division Bench of this Court reported in Hamsa v. Assistant Commissioner 2008 (3) KLT 180. It is also brought to the notice of this Court that the decision sought to be relied upon by the petitioner is not with reference to scope and effect under Section 26A of the K.G.S.T Act and hence not W.P.(C)No.31193 OF 2007 5 applicable. 6. After hearing both the sides, this Court finds that the only prayer of the petitioner is to direct the respondent to effect mutation by causing necessary entries in the Village records based on Ext.P1 title deed. Going by the pleadings and materials on record, it is seen that the property was purchased by the petitioner from a person who was indebted to the Government, under different heads, particularly by way of sale tax dues. This being the position, there is considerable force in the submission made from the part of the respondent that the respondent is justified in not acceding to the request made by the petitioner for causing to effect mutation as the title itself is disputed. In the said circumstances, this Court finds that no such positive direction can be issued by this Court to the respondent as prayed for in the writ petition. Interference is declined and the writ petition is dismissed. The question regarding the rights and liberties of the petitioner on the basis of Ext.P1 is left open. P.R.RAMACHANDRA MENON JUDGE dmb