Allowed

Arya Devi v. the State of Kerala

Kerala HC26 May 2016WA/303/2016

Case brief

AI extract

What is this about?

The High Court allowed the writ appeal against a Single Judge order. The Court held that the District Collector lacked jurisdiction as the mutation application did not comply with Rule 18 of the Transfer of Registry Rules and was passed without notice. The appellate order dismissing the writ petition and remitting the matter for reconsideration was set aside. Parties were directed to continue thei

What did the court decide?

The judgment under appeal was set aside, the writ petition W.P.(C) No.15634/15 was dismissed, and the writ appeal W.A. No.303 of 2016 was allowed.

Arya Devi Vs the State of Kerala — Property and Title | Kerala HC (2016)

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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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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938

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W.A.No.303 of 2016 IN WP(C).15634/2015

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AGAINST THE JUDGMENT IN WP(C) 15634/2015 of HIGH COURT OF KERALA DATED 11-12-2015

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APPELLANTS/RESPONDENTS 6 & 7:

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ARYA DEVI

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D/O.SREEDEVI PILLA, RESIDING AT KARUR KIZHAKKATHIL HOUSE, EREZHAMURI, PERINGALA VILLAGE, MAVELIKARA, ALAPPUZHA-690 101.

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NISHA SOMAN @ SMITHA D/O.ARYA DEVI, RESIDING AT KARUR KIZHAKKATHIL HOUSE, EREZHAMURI, PERINGALA VILLAGE, MAVELIKARA, ALAPPUZHA-690 101.

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BY ADVS.SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.P.J.JOE PAUL

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RESPONDENTS/RESPONDENTS 1 TO 5 AND WRIT PETITIONER.:

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THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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THE DISTRICT COLLECTOR, ALAPPUZHA-682 001.

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THE REVENUE DIVISIONAL OFFICER, CHENGANNUR-689 121.

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THE ADDITIONAL TAHSILDAR, MAVELIKKARA-690 101.

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THE VILLAGE OFFICER, PERINGALA, MAVELIKKARA-690 101.

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SANTHAKUMARI AMMA, W/O.RAMACHANDRA KURUP, RESIDING AT AYIRUMUTTATHU HOUSE, KARAKKAD MURI, MULAKUZHA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT-689 121.

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R6 BY ADV. SRI.R.RAJASEKHARAN PILLAI R6 BY ADV. SMT.SABINA JAYAN R BY SR. GOVERNMENT PLEADER SRI.SOJAN JAMES

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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Writ Appeal No.303 of 2016

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26^th day of May, 2016

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JUDGMENT

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Antony Dominic, J.

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Respondents 6 and 7 in W.P.(C)No.15634/15 are the appellants. In this appeal, they are challenging the judgment of the learned Single Judge whereby the writ petition was disposed of relegating the proceedings under the Transfer of Registry Rules to the Revenue Divisional Officer.

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We heard the counsel for the appellants, learned Government Pleader appearing for the official respondents and the learned counsel appearing for the sixth respondent.

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The subject matter of the litigation is in relation to 34.40 Ares of property comprised in Survey No.140/9 of Peringala Village in Mavelikkara Taluk. The appellants claim that they acquired title over the property by Ext.R6(b) exchange deed dated

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Writ Appeal No.303 of 2016

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23.7.1985. It is their case that since then the property was mutated

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in their name and tax was also being paid on that basis.

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It is stated that while so, on 13.8.2010, the sixth respondent applied to have mutation of the land effected in her favour on the strength of a gift deed of 1976. The proceedings resulted in Ext.R6(e) order passed by the Tahsildar, where accepting the objections raised by the appellants, the request made by the sixth respondent was rejected, leaving it open to the parties to get their rights agitated before the civil court. An appeal was filed by the sixth respondent before the Revenue Divisional Officer. After hearing both sides, an order was passed by the Revenue Divisional Officer on 12.10.2012. Here also, it was clarified that the parties will have to get the disputes resolved through the civil court.

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According to the appellants, while the matter stood thus, the sixth respondent submitted Ext.P2 application before the

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Writ Appeal No.303 of 2016

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: 3 :

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District Collector, Alappuzha, requesting that mutation be effected in her name. Without issuing notice to the appellants, the District Collector, Alappuzha passed Ext.P4 order directing the Tahsildar to effect mutation in the name of the sixth respondent. Consequently, the Tahsildar passed Ext.P5 order dated 27.10.2012 effecting mutation as ordered in Ext.P4. It is the grievance of the appellants that both Exts.P2 and P5 were passed without notice.

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They filed Ext.R6(g) appeal before the Revenue Divisional Officer. By Ext.P9 order, the Revenue Divisional Officer set aside Ext.P5 and again relegated the parties to the civil court. It was challenging Ext.P9 order that the sixth respondent filed the writ petition. By the judgment under appeal, the learned Single Judge set aside Ext.P9 and once again remitted the matter to the Revenue Divisional Officer with a direction to reconsider the matter as ordered therein. It is this judgment, which is under challenge.

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Writ Appeal No.303 of 2016

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According to the appellants Ext.P2, the application on the

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basis of which Exts.P4 and P5 orders were issued, itself was not maintainable. It is stated that the Collector has acted as the primary authority without jurisdiction and that too in violation of the principles of natural justice. Therefore, according to the appellants Exts.P4 and P5 are untenable and, therefore, were rightly set aside by the Revenue Divisional Officer as per Ext.P9. On this basis, the counsel contends that the learned Single Judge erred in setting aside Ext.P9. On the other hand, it is contended by counsel for the sixth respondent that Ext.P2 was entertained by the Collector as a revision filed under the provisions of the Transfer of Registry Rules and Ext.P4 order was passed taking note of Ext.P3 report of the Tahsildar. Therefore, according to the learned counsel, Ext.P4 and the consequential orders are perfectly legal and the Revenue Divisional Officer should not have upset those proceedings. On this basis, counsel contended that the learned

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Writ Appeal No.303 of 2016

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Single Judge was fully justified in interfering with Ext.P9.

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Having considered the rival submissions made at the Bar, we are inclined to agree with the learned counsel for the appellants. Ext.P2 is the application on the basis of which Exts.P4 and P5 orders were passed. This application was made to the District Collector. Going by Rule 18 of the Transfer of Registry Rules, 1966, District Collector has been conferred with the power of revision. However, sub rule 5 specifically provides that no order in revision interfering with the original order shall be passed without giving the party or parties affected thereby a reasonable opportunity of being heard. It is also provided that the revision petitions presented by the party shall be accompanied by the original or a certified copy of the order sought to be revised.

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Insofar as this case is concerned, Ext.P2, the application submitted by the 6^th respondent, reads thus:

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“BEFORE THE DISTRICT COLLECTOR, ALAPPZUHA

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Writ Appeal No.303 of 2016

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: 6 :

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Application submitted by P.Santhakumari, Ayirumuttathu House, Karakkad P.O., Karakkad Muri, Mulakkuzha Village, Chengannur Taluk

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My husband, who retired from General Reserve Engineering Force (GREF) of Army Service after putting in 28 years of service, upon coming back to his native place met with a drastic road accident sustaining grave injuries, and has been undergoing treatment at hospital and home for some time. Property having an extent of 85 cents gifted to me by my mother was wrongly added in some other account at the time of resurvey. I have been petitioning the village office and revenue office for past four years for rectifying the mistake. The Addl. Tahsildar has reported that there is no objection in adding the property in my account. I am a liver patient. Hence it is prayed that appropriate orders be issued to mutate the property in my name.

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Sd/Santhakumari Amma”

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Reading of the above application would, therefore, show

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that it does not refer to the previous proceedings, namely, Ext.R6(e) or R6(f) nor has the 6^th respondent produced copies of those proceedings. It is also not styled as a Revision under Rule 18. Therefore, it was not a revision as contemplated under Rule 18 of the Transfer of Registry Rules. In such a situation, the District

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Writ Appeal No.303 of 2016

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Collector could not have entertained Ext.P2 and he should have rejected Ext.P2 at the threshold itself. Not only that he has entertained it, he has passed Ext.P9, a positive direction to the Tahsildar to effect Transfer of Registry in favour of the 6^th respondent and that too, without even issuing notice to the appellants in whose favour Exts.R6(e) and R6(f) orders were in existence. Therefore, this exercise of power of the District Collector shows that he has proceeded as he is the primary authority. Such an exercise of power is totally impermissible, illegal and is ultra vires the enabling rules. For that reasons itself, Exts.P4 and P5 were illegal and the Revenue Divisional Officer was eminently justified in issuing Ext.P9, setting aside Ext.P5 order passed by the Tribunal.

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Therefore, challenge against Ext.P9 could not have been accepted.

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Writ Appeal No.303 of 2016

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We are informed that the parties are already before the Munsiff Court, Kayamkulam where O.S.442/12 filed by the appellants is pending. Therefore, anything that we have stated in this judgment in the context of Ext.P9 cannot be to the prejudice of anyone of them.

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In the result, without prejudice to the contentions of the parties in O.S.442/12 on the file of the Munsiff Court, Kayamkulam, we set aside the judgment under appeal and dismiss W.P.(C)

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15634/15 and allow this appeal.

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Sd/-

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ANTONY DOMINIC JUDGE

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Sd/-

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DAMA SESHADRI NAIDU JUDGE

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jes

Arya Devi v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Arya Devi v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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