Partly allowed

Usha Anilkumar & Another v. the District Collector & Others

Kerala HC25 Mar 2009WP(C)/7871/2009

Case brief

AI extract

What is this about?

The court held that mutation cannot be denied due to pending recovery proceedings or liabilities as it is for fiscal purposes only. Regarding attachment lifting, the petitioner must pay actual expenses incurred by the authorities after the bank liabilities were settled.

What did the court decide?

Petitioner to pay actual expenses incurred by respondents for attachment and recovery; upon payment, respondents to lift attachment.

Usha Anilkumar & Another Vs the District Collector & Others — Landlord and Tenant | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE ANTONY DOMINIC

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WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931

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WP(C).No. 7871 of 2009(D)

PETITIONERS :

USHA ANILKUMAR, AGED 28 YEARS,

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'USHUS', POOVATHOOR, MACHAVILAKOM, NEYYATTINKARA, THIRUVANANTHAPURAM DIST.

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K.SREEKANTAN NAIR, PP-V/374, 'USHUS',POOVATHOOR, MACHAVILAKOM, NEYYATTINKARA, THIRUVANANTHAPURAM DIST.

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BY ADV. SRI.SUMAN CHAKRAVARTHY

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RESPONDENTS:

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THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM DISTRICT.

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THE TAHSILDAR, NEYYATTINKARA.

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THE VILLAGE OFFICER, KOLLAYIL.

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THE KERALA HANDLOOM WEAVERS WELFARE FUND BOARD, THIRUVANANTHAPURAM.

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THE INDIAN OVERSEAS BANK,

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REP BY ITS SENIOR MANAGER, NEYYATTINKARA.

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ADV. SRI.V.PHILIP MATHEW FOR R5

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SRI. M.A. ASIF, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 7871/ 2009

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXHIBIT P1: TRUE COPY OF THE REPRESENTATION DATED 21/02/2009. EXHIBIT P2: TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT. EXHIBIT P3: TRUE COPY OF THE LETTER ISSUED BY THE BANK DATED 1/1/2009. EXHIBIT P4: TRUE COPY OF THE RECEIPT DATED 30/12/2008. EXHIBIT P5: TRUE COPY OF THE ORDER DATED 21/01/2009. EXHIBIT P6: TRUE COPY OF THE COMMUNICATION DATED 22/01/2009.

TRUE COPY

P.A. TO JUDGE

scm

ANTONY DOMINIC, J.

W.P.(C) No. 7871 of 2009

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Dated this the 25^th day of March, 2009

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JUDGMENT

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Petitioners have two grievances. One is regarding refusal on the part of respondents to effect mutation in respect of a property. The other one is regarding that the Revenue Authorities are not lifting the attachment over the properties in spite of the petitioners’ discharging liability that are due to the second respondent.

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Facts of the case are that the first petitioner is the daughter of the second petitioner. According to the petitioners, on the eve of the marriage of the first petitioner, on 18/10/2000, the second petitioner had executed a settlement deed in respect of 86

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ares 30 sq meters of land in favour of the first petitioner. She made Exhibit P1 application to the 3^rd respondent for effecting mutation of the property in her favour and that was declined. Four reasons are stated. First is that the second petitioner had availed of a loan from the 5^th respondent and that recovery proceedings have been initiated. Petitioner submits that liability has been discharged in full and that the bank has certified this by Exhibit P3. This position is also confirmed by the counsel appearing for the 5^th respondent, bank. Another objection raised is regarding attachment

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W.P.(C) No. 7871 /2009

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over the properties in pursuance to orders in ST 4566/2006 and ST 113/2006. Referring to Exhibits P5 and P6, form of order on withdrawal by complainant and communication issued by the Judicial First Class Magistrate Court to the District Collector, it is stated that the distress warrant had been withdrawn. Therefore, that objection also does not survive. Third is that Location sketch was prepared in CR 23/08 with respect to the property in question. Assuming it to be true, the preparation of a location sketch could not have resulted in any charge over the property. However, the learned Government Pleader on instruction submits that recovery proceedings in respect of property for realising Abkari liability are pending. Other objection raised is regarding the liability of the second petitioner to the 4^th respondent.

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Therefore, the question is whether the alleged liability due to Abkari dues and liability to the 4^th respondent could have stood in the way of the second respondent, effecting mutation in favour of the first petitioner. Mutation is a matter which is governed by the provisions of the Transfer of Registry Rules. Rule 16 of the Transfer of Registry Rules itself provide that mutation is effected only for fiscal purposes and such an order does not have

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W.P.(C) No. 7871 /2009

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any impact on the title or claim of anybody over the property. Thus such an order will only enable the person to pay tax in respect of property. Therefore, pendency of the proceedings if any or the liability that is mentioned, could not have stood in the way of the second respondent effecting mutation as sought for by the first petitioner. In view of this, the first respondent shall necessarily reconsider Exhibit P1 and pass orders thereon.

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Another grievance of the petitioner is regarding the refusal of the respondents in lifting attachment over the property for the reasons recovery proceedings for realising amount due to the 5^th respondent therein is initiated. Petitioner states and counsel for the bank confirms that liability has been settled. However, the learned Government Pleader points out that settlement of the liability was after initiation of the revenue recovery proceedings. It is stated that notices were issued and properties were attached and that thereafter the liability was settled. According to the Govt. Pleader RR charges is liable to be paid. Counsel for the petitioners, relying on the judgment of this Court in Bhaskaran Vs. Sub Registrar [2005(3) KLT 150] points out that unless the amount is recovered utilising the RR machinery, the defaulter cannot be

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W.P.(C) No. 7871 /2009

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saddled with the liability to pay the collection charges as prescribed under the Revenue Recovery Rules.

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I am inclined to agree with counsel for the petitioners that since amount was not recovered, RR charge is not payable. However the fact that on account of default committed by the petitioners, the 5^th respondent issued a requisition and in pursuance thereto steps were taken for realising the liability. It is only thereafter that the petitioner settled dues of the bank. If that be so, the petitioners do have the liability to pay the expenses that were

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incurred by respondents 1 to 3 in this behalf and therefore it is ordered that the petitioners shall pay the actual expenses that were incurred by respondents 1 to 3 and on such payment, necessary orders for lifting the attachment over the property shall be passed. Petitioner shall produce a copy of this judgment before the respondents 1 to 3, who shall quantify the actual amount payable by the petitioner, within two weeks thereafter and payment shall be made immediately thereafter.

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Writ petition is disposed of as above.

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ANTONY DOMINIC, JUDGE

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scm

Usha Anilkumar & Another v. the District Collector & Others

Case brief

What is this about?

What did the court decide?

Usha Anilkumar & Another v. the District Collector & Others

Case brief

What is this about?

What did the court decide?

What the court decided

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