Partly allowed

Maheswari v. Tahsildar

Kerala HC13 Jan 2022WP(C)/542/2021

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of three connected writ petitions regarding a dispute over undivided land rights and a canceled building permit. The Court set aside a Tahsildar's order granting undivided rights without a hearing and directed a re-examination of the sale deed.

What did the court decide?

Ext.P4 order granting undivided rights set aside; Tahsildar directed to hear parties and examine documents within three months. Building permit cancellation remains in force unless ratified by Municip

Maheswari Vs Tahsildar — Property and Title | Kerala HC (2022)

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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 DEVAN RAMACHANDRAN

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THURSDAY, THE 13^TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943

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WP(C) NO. 10931 OF 2020

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PETITIONER:

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VARGHESE AGED 69 YEARS S/O DEVASSY, MELEDATHU PARAMBIL HOUSE, NEAR REST HOUSE, IRINJALAKUDA, THRISSUR DISTRICT-680 121. BY ADV G.SREEKUMAR (CHELUR)

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT-695 001.

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2 THE IRINJALAKUDA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, IRINJALAKUDA P.O.THRISSUR DISTRICT-680 121. 3 MAHESWARI, AGED 56 YEARS W/O SIVARAMAN, DESATH MELITTAVEETIL HOUSE, IRINJALAKUDA P.O., THRISSUR DISTRICT-680 121. 4 SREEJA SURESH, W/O SURESH , COUNCILOR, WARD NO 24, IRINJALAKUDA P.O., THRISSUR DISTRICT-680 121. BY ADVS. SRI.K.K.CHANDRAN PILLAI (SR.) SRI.V.M.KRISHNAKUMAR SMT.S.AMBILY, SC, IRINJALAKUDA MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2022, ALONG WITH WP(C).542/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.10931/2020 & Con. Cases

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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 DEVAN RAMACHANDRAN

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THURSDAY, THE 13^TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943

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WP(C) NO. 542 OF 2021

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PETITIONER:

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MAHESWARI

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AGED 56 YEARS W/O. SIVARAMAN, MELITTAVEETIL HOUSE, IRINJALAKUDA P.O, THRISSUR DISTRICT, PIN-680 121

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BY ADV V.M.KRISHNAKUMAR

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RESPONDENT/S:

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1* TAHSILDAR TALUK OFFICE, MUKUNDAPURAM TALUK, IRINJALAKUDA P.O, THRISSUR DIST, PIN-680 121. *(SOU MOTU CORRECTED)

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CORRECTED ADDRESS OF 1ST RESPONDENT

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TAHSILDAR (LR), TALUK OFFICE, MUKUNDAPURAM TALUK, IRINJALAKUDA P.O., THRISSUR DISTRICT, PIN-680 121.

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ADDRESS OF 1ST RESPONDENT SUOMOTU CORRECTED AS PER THE ORDER DATED 08.01.2021 IN WP(C) 542/2021.

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2 THE VILLAGE OFFICER, IRINJALAKUDA VILLAGE OFFICE, IRINJALAKUDA P.O, THRISSUR DISTRICT, PIN-680 121

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3 VARGHESE, S/O. DEVASSY, MELEDATH PARAMBIL HOUSE, NEAR REST HOUSE, IRINJALAKUDA P.O, THRISSUR DISTRICT, PIN-680 121

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BY ADVS. GOVERNMENT PLEADER SRI.G.SREEKUMAR (CHELUR)

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OTHER PRESENT:

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WP(C) NO.10931/2020 & Con. Cases

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GP RESHMI THOMAS., SC S. AMBILY., SR ADV RANJITH THAMBAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2022, ALONG WITH WP(C).2873/2021, 10931/2020, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.10931/2020 & Con. Cases

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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 DEVAN RAMACHANDRAN

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THURSDAY, THE 13^TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943 WP(C) NO. 2873 OF 2021

PETITIONER:

MAHESWARI

AGED 56 YEARS

W/O. SIVARAMAN, MELITTAVEETIL HOUSE, IRINJALAKUDA P.O., THRISSUR DISTRICT-680121.

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BY ADV V.M.KRISHNAKUMAR

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RESPONDENTS:

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1 TAHSILDAR, TALUK OFFICE, MUKUNGAPURAM TALUK, IRINJALAKUDA P.O., THRISSUR DISTRICT-680121.

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2 THE VILLAGE OFFICER, IRINJALAKUDA VILLAGE OFFICE, IRINJALAKUDA P.O., THRISSUR DISTRICT-680121.

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3 VARGHESE, S/O. DEVASSY, MELEDATH PARAMBIL HOUSE, NEAR REST HOUSE, IRINJALAKUDA P.O., THRISSUR DISTRICT-680121.

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BY ADV SRI.G.SREEKUMAR (CHELUR)

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GP RESHMI THOMAS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2022, ALONG WITH WP(C).542/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.10931/2020 & Con. Cases

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JUDGMENT

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I am considering these three matters together

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and am disposing of them jointly, since the factual factors involved are analogous and the reliefs

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sought for therein are interdependent – which is to say that grant of reliefs in one, will have an indelible effect on the grant of reliefs in the others.

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have been filed by Smt.Maheswari; while W.P. (C).No.10931 of 2020 has been filed by Sri.Varghese.

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For the sake of convenience, I will refer to

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the parties by their names hereinafter.

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late husband had sold a building standing in the property which now belongs to her, to Sri.Varghese, without any undivided share being offered on it to him. She says that, therefore, there was no question of Sri.Varghese being allowed to remit land tax on

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any part of the property, or to seek transfer of

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WP(C) NO.10931/2020 & Con. Cases

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Registry of the same in his favour; but that, making several misrepresentations, he managed to obtain Ext.P4 order in W.P.(C).No.2873 of 2021, whereby, even without hearing her, the Tahsildar (Land Records) entered into a conclusion that, under the sale deed between the parties, undivided rights over the property had also been assigned in favour of Sri.Varghese.

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Smt.Maheswari asserts that Ext.P4 order in W.P.(C).No.2873 of 2021 is egregiously improper because the same Authority had, a couple of days earlier, issued Ext.P3 therein recording to the contrary; and that, consequent to the impugned order, an attempt was made by Sri.Varghese to obtain transfer of Registry of the property of the “undivided share” in the property in his favour,

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which has constrained her to file W.P.(C).No.542 of 2021, seeking a direction to respondents 1 and 2

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therein, not to accede to the same without hearing her.

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That being so, it transpires that

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WP(C) NO.10931/2020 & Con. Cases

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Sri.Varghese obtained a building permit from the Irinjalakuda Muncipality, on the assertion that he is entitled to make a construction in the building and the property under it, so as to provide a septic tank, since he has undivided rights over the same.

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It appears that the Municipality accepted his version and issued a building permit, on the strength of which, he made an excavation in the building to the extent of six feet, so as to install the tank, but that on account of the objections raised by Smt.Maheswari, an enquiry was conducted

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and the Secretary of the Municipality issued an

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order canceling the building permit, which order has been assailed by Sri.Varghese in W.P.(C).No.10931 of 2020, producing it as Ext.P8.

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I have heard Sri.Renjith Thampan, learned

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Senior Counsel, instructed by Sri.V.M.Krishnakumar – learned counsel for Smt.Maheswari; Sri.Sreekumar

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Chelur – learned counsel for Sri.Varghese; Smt.S.Ambily – learned Standing Counsel for the Irinjalakuda Municipality; and Smt.Reshmi Thomas –

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WP(C) NO.10931/2020 & Con. Cases

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learned Government Pleader appearing for the official respondents in all three cases.

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As is perspicuous from the afore narration

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of facts, there are two broad issues involved in

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these cases, namely:

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(a) Whether Sri.Varghese has obtained any

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undivided right over the land on which the building is situated, through the sale deed executed in his favour by the husband of Smt.Maheswari;

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b) Whether the action of the Irinjalakuda

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Municipalility in having cancelled the building permit of Sri.Varghese is in error.

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As I have already noticed above, it is the specific case of Smt.Maheswari that her husband had assigned only the building to Sri.Varghese, without

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any undivided right being reserved in his favour,

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over the land under it; and therefore, that neither

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can he seek transfer of Registry of any portion thereof in his favour, nor make any construction by digging into the land in question.

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That having been said, the Irinjalakuda

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WP(C) NO.10931/2020 & Con. Cases

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Municipality in Ext.P8 in W.P.(C).No.10931 of 2020 says that the building permit issued to Sri.Varghese was under a mistaken notion, on account of his misrepresentation, because the same had been issued without him producing either the tax receipt with respect to the land in question or the documents to show that he had any right over it, and even before he had obtained transfer of its Registry in his favour. The order also says that production of the possession certificate, over the land in question, which is a mandatory requirement under the applicable Building Rules, had also not been done by Sri.Varghese.

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It is thus apodictic, that the primary question for this Court to consider is whether Sri.Vargehse has any right over the land in question – be that undivided or otherwise. It is only if he is able to establish that he has such right, can the question of his making a request for transfer of Registry of the same in his name and to consequently obtain a possession certificate and tax receipt on

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WP(C) NO.10931/2020 & Con. Cases

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it become relevant.

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However, going by Ext.P4 proceedings of

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the Tahsildar in W.P(C)No.2873 of 2021, he has

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entered into an opinion without hearing any of the

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parties and without examining any document to

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establish that Shri.Varghese obtains undivided share over the property in question. One certainly fails to understand how this conclusion was arrived at, particularly when Smt.Maheswari was, concededly, not given an opportunity of being heard.

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Therefore, the opinion of the Tahsildar,

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that Shri.Varghese has obtained an undivided share over the land, cannot obtain my imprimatur at this

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time, especially because, based on the said order, Shri.Varghese is now attempting to obtain transfer of Registry in his favour, so as to validate the building permit which he had already obtained from the Irinjalakkuda Municipality.

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In such perspective, the submissions of

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Smt.S.Ambily, learned Standing Counsel for the

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WP(C) NO.10931/2020 & Con. Cases

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Irinjalakkuda Municipality, gathers some force because she says that the building permit in question was issued to Shri.Varghese under a misrepresentation made by him that he has undivided share over the land in question and that he is thus entitled to construct a septic tank by digging under the building in question. Since this issue itself is at large, being still properly not decided, I cannot blame the Municipality in having issued Ext.P8 order in W.P(C)No.10931 of 2020.

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It is needless to say that only if

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Shri.Varghese is able to cogently establish undivided rights over the property, can he maintain the building permit in his favour and seek transfer of Registry of the said undivided share in his favour, as also for permission to remit land tax thereon.

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The law in this regard is well settled by

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various judgments of this Court, including in

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Korah M.P (Dr.) and Others v. Dr.Mrs.Rachel

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WP(C) NO.10931/2020 & Con. Cases

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Zacharia alias Rahel and Others [2018 (1) KHC 365] and Sunil v. Additional Thahasildar, Kollam and Others [2019 (2) KHC 889], that a transfer of Registry of an undivided share of land can be effected only after hearing all the joint owners,

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or at least after giving them an opportunity of being heard.

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In the case at hand, as I have already said above, Ext.P4 proceedings in W.P(C)No.2873 of 2021 have been settled by the Tahsildar - finding

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undivided share in favour of Shri.Varghese over the land in question - without hearing or affording an opportunity of being heard to Smt.Maheswari. Obviously, therefore, Ext.P4 cannot find my favour, particularly because, in Ext.P3 in the same writ petition, which was settled by the same Authority a couple of days earlier, he appears to have found to the contrary.

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Resultantly, I am certain that the entire

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matter will require to be reconsidered, for which

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WP(C) NO.10931/2020 & Con. Cases

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purpose, I issue the following directions:

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Ext.P4 is set aside; with a resultant direction to

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the Tahsildar to hear both sides and examine all

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the relevant documents, including the Sale Deed claimed by Shri.Varghese, and then finally take a decision as to whether he obtains any undivided right over the land in question. This shall be done by the Tahsildar as expeditiously as is possible, but not later than three months from the

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date of receipt of a copy of this judgment.

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without any further orders, in view of the afore directions.

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leaving liberty to the petitioner to approach the competent Authority of the Irinjalakkuda

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Municipality, subject to the decision to be taken by the Tahsildar in terms of my directions in (a) above. If the Tahsildar is to find in favour of

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WP(C) NO.10931/2020 & Con. Cases

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Shri.Varghese that he holds undivided right over the land in question, he will certainly be entitled to move the competent Authority of the Municipality and seek that his building permit be ratified; which shall then be done by the said Authority, after hearing Smt.Maheswari also.

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decision as above and Shri.Varghese thereafter approaches the Municipality, Ext.P8 in W.P(C)No.10931 of 2020 will continue to be in

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force; which will, however, be amenable to modification by the competent Authority as ordered above, subject to the decision to be taken by the Tahsildar, in which event alone, Shri.Varghese will be entitled to continue with the construction or to use the septic tank, which he has presently attempted to construct.

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DEVAN RAMACHANDRAN JUDGE

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MC/13.1

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WP(C) NO.10931/2020 & Con. Cases

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APPENDIX OF WP(C) 10931/2020

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PETITIONER EXHIBITS

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EXHIBIT P1	A TRUE COPY OF THE PHOTOGRAPH TAKEN BY THE PETITIONER
EXHIBIT P2	A TRUE COPY OF THE DOCUMENT BEARING NO 3167 OF 5 DATED 23.12.05 OF THE IRINJALAKUDA S.R.O
EXHIBIT P3	A TRUE COPY OF THE BUILDING PERMIT GRANTED BY THE SECOND RESPONDENT DATED 2.11.18
EXHIBIT P4	A TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 4.5.19
EXHIBIT P5	A TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER THROUGH HIS LAWYER DATED 4.2.19
EXHIBIT P6	A TRUE COPY OF THE PLAINT IN OS NO 614 OF 19 DATED 1.6.19 ON THE FILE OF THE MUNSIFF COURT, IRINJALAKUDA.
EXHIBIT P7	A TRUE COPY OF THE JUDGMENT DELIVERED IN WPC NO 33943 OF 2019 DATED 16.1.2020
EXHIBIT P8	A TRUE COPY OF THE ORDER PASSED DATED 5.3.2020
EXHIBIT P9	A TRUE COPY OF THE RECEIPT NOTICE ISSUED U/S 406 (1) OF THE KERALA MUNICIPALITY ACT 1994.
EXHIBIT P10	A TRUE COPY OF THE THANDAPER ACCOUNT DATED 8.9.2020`
EXHIBIT P11	A TRUE COPY OF THE RECEIPT DATED 8.9.2020
EXHIBIT P12	A TRUE COPY OF THE COMMUNICATION OF THE MUNICIPALITY DATED 29.8.2019.

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WP(C) NO.10931/2020 & Con. Cases

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APPENDIX OF WP(C) 542/2021

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 3167/2005 DATED 23.12.2005. EXHIBIT P1 A TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE PETITIONER DATED 22.05.2018. EXHIBIT P2 TRUE COPY OF THE ORDER OF THE IRINJALAKUDA MUNICIPALITY DATED 05.03.2020. EXHIBIT P3 TRUE OF THE LETTER DATED 10.06.2018 OF THE TAHSILDAR. EXHIBIT P4 TRUE COPY OF THE REPRESNTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 22.12.2020. RESPONDENT EXHIBITS ANNEXURE R1(a) THE TRUE COPY OF THE ORDER NO.4916/20 DATED 7.7.2020.

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WP(C) NO.10931/2020 & Con. Cases

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APPENDIX OF WP(C) 2873/2021

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PETITIONER EXHIBITS

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EXHIBIT	P1 TRUE COPY OF THE SALE DEED NO.3167/2005 DATED 23/12/2005.
EXHIBIT	P1(A) TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE PETITIONER DATED 22/05/2018.
EXHIBIT	P2 TRUE COPY OF THE ORDER OF THE IRINJALAKUDA MUNICIPALITY DATED 05/03/2020.
EXHIBIT	P3 TRUE COPY OF THE LETTER DATED 10/05/2019 OF THE TAHSILDAR.
EXHIBIT	P4 TRUE COPY OF LETTER OF THE 1ST RESPONDENT DATED 07/07/2020.
EXHIBIT	P5 TRUE COPY OF THE FORM NO.1 APPLICATION UNDER RULE 13 OF TRANSFER OF REGISTRY RULES.
EXHIBIT	P6 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT IN 22/12/2020.

Maheswari v. Tahsildar

Case brief

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Maheswari v. Tahsildar

Case brief

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