IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 WP(C).No. 6248 of 2010(E) ------------------------- PETITIONER(S): --------------- 1. CHANDRIKA, W/O.RAM BABU, PUTHAZHIKATHUVEEDU, METHUMEL THAZHAKATHU VADAKKU PO, THAZHATHU VADAKKU MURI, ENATHU. 2. SARASWATHI, W/O.SURENDRAN, SURYALAYATHIL, KADAMBANAD VADAKKE MURI, KADAMBANAD VILLAGE. BY ADV. SRI. K.SHAJ SRI.SAJJU.S RESPONDENT(S): --------------- VILLAGE OFFICER, KADAMBANAD VILLAGE. GOVT. PLEADER SRI. V. MANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: W.P.C.NO. 6248/2010. ----------------------------------------------------------------- EXT.P1 TRUE COPY OF APPLICATION DT. 22-1-2008. EXT.P2 TRUE COPY OF SALE DEED. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 6248 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 5th day of August, 2010. J U D G M E N T Petitioners are the transferee and transferor respectively of certain lands. They applied for mutation of land in favour of the 1st petitioner, who is the purchaser. Their grievance in this writ petition is that the respondent is refusing to effect mutation of the properties in the name of the 2nd petitioner. Therefore, the petitioners seek the following relief: “To issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding the respondent to effect mutation of the above property in the name of the first petitioner within a specified time limit.” 2. The learned Government Pleader, on instructions, submits that it was after revenue recovery proceedings were initiated against the 2nd petitioner that the 2nd petitioner transferred the property to the 1st petitioner, which is against Section 44 of the Kerala Revenue Recovery Act and therefore the transfer itself is not binding on the Government. If such transfer is not binding on the Government, an officer of the Government cannot be directed by a writ of mandamus to effect mutation in respect of the property in favour of the purchaser. He further submits that even going by the Transfer of Registry Rules, the respondent is not bound to effect mutation in respect of such transaction. The learned Government Pleader refers to clause 7(2)(ii) of the Transfer of Registry Rules, wherein there is a specific duty cast on the village officer to certify that the property is not pledged as security for loans and it has not been attached by the Government. For that reason also, mutation cannot be directed tobe effected, is the contention raised by the learned Government Pleader. 3. I have considered the rival contentions in detail. W.P.C. No. 6248/10 -: 2 :- 4. Section 44 of the Kerala Revenue Recovery Act reads thus: “44. Effect of engagements and transfers by the defaulter:- (1) Any engagement entered into by the defaulter with any one in respect of any immovable property after the service of the written demand on him shall not be binding upon the Government. (2) Any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrear, with intent to defeat or delay the recovery of such arrear, shall not be binding upon the Government. (3) Where a defaulter transfers immovable property to a near relative or for grossly inadequate consideration after public revenue due on any land from him has fallen in arrear, it shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear, and the Collector or the authorised officer may, subject to the order of a competent Court, proceed to recover such arrear of public revenue by attachment and sale of the property so transferred, as if such transfer has not taken place: Provided that, before proceeding to attach such property, the Collector or the authorized officer shall- (i) give the defaulter an opportunity of being heard; and (ii) record his reasons therefor in writing. Explanation:- For the purposes of tis section, “near relative” includes husband, wife, father, mother, brother, sister, son, daughter, step son, step daughter, uncle, aunt, son-in-law, daughter-in-law, brother-in-law, nephew or niece of the transferor.” Going by the same, after the default in payment of arrears of public revenue, transfer of immovable property concerned shall not be binding upon the Government if the same is with the intend to defeat or delay the recovery of such arrears of public revenue. If such transfer is not binding on the Government, as rightly pointed out by the learned Government Pleader, this Court cannot issue a mandamus to a servant of the Government to effect mutation of the property in the name of the transferee. Further, clause 7(2)(ii) of the W.P.C. No. 6248/10 -: 3 :- Transfer of Registry Rules reads thus: “(7) (1) xx xx xx (i) xx xx xx (ii) The Village Officer furnishing the required details shall also certify in the statement in Form 'A' whether the lands involved therein are owned by Scheduled Castes or Scheduled Tribes and whether the transfer of registry is in favour of the same community. It shall also be ascertained and reported whether there is any prohibition in the original document against alienation of the property by the transferor or his predecessor in interest. Village Officers should certify in Form 'A' Statement to the effect that the property is not pledged as security for loans etc., and it has not been attached by Government.” That is also an indication which would go to show that if the property, in respect of which mutation is prayed for, is pledged as security for loans etc., and attached by the Government, mutation cannot be effected in respect of that property. In the above circumstances, the petitioners are not entitled to the reliefs prayed for and accordingly the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/