W. P. (C) No. 13991 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
WP(C) NO. 13991 OF 2018
PETITIONER/S:
1 JAYAMATHI
D/O. KOMALAMMA, THENGUVILA VEEDU,VANDANNOOR,
MARANALLOOR PAKUTHI,NEYYATTINKARA - 695 121.
2 V.J.ANEESH
S/O. LATE VARGHESE, THENGUVILA VEEDU,VANDANNOOR,
MARANALLOOR PAKUTHI,NEYYATTINKARA - 695 121.
3 V.J.ANILA
D/O. JAYAMATHI, THENGUVILA VEEDU,VANDANNOOR,
MARANALLOOR PAKUTHI,NEYYATTINKARA - 695 121.
4 V.J.AJEESH
S/O. LATE VARGHESE, THENGUVILA VEEDU,VANDANNOOR,
MARANALLOOR PAKUTHI,NEYYATTINKARA - 695 121.
BY ADVS.
SRI.V.G.ARUN (K/795/2004)
SMT.INDULEKHA JOSEPH
SRI.NEERAJ NARAYAN
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,THIRUVANANTHAPURAM
- 695 001.
2 DISTRICT COLLECTOR
THIRUVANANTHAPURAM - 695 001.
3 REVENUE DIVISIONAL OFFICER
OFFICE OF THE REVENUE DIVISIONAL
OFFICER,THIRUVANANTHAPURAM - 695 001.
W. P. (C) No. 13991 of 2018
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4 TAHASILDAR
NEYYATTINAKRA TALUK,THIRUVANANTHAPURAM - 695 505.
5 ADDITIONAL TAHASILDAR
NEYYATTINKARA TALUK,THIRUVANANTHAPURAM - 695 505.
6 VILLAGE OFFICER
VELLARADA VILLAGE, VELLARADA
P.O.,THIRUVANANTHAPURAM - 695 505.
7 JAYAKUMAR J
AGED 44 YEARS
AGED 44 YEARS, S/O. GAMALIEL JUSTUS,RESIDING AT
J.D COTTAGE, VELLARADA P.O.,THIRUVANANTHAPURAM -
695 505.
8 UPA LOKAYUKTHA
REPRESENTED BY REGISTRAR,LEGISLATURE COMPLEX,
VIKAS BHAVAN, THIRUVANANTHAPURAM, KERALA - 695
033.
BY ADV SRI.V.SUNIL KUMAR PANACHAMOODU
OTHER PRESENT:
SRI. TEKCHAND, SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W. P. (C) No. 13991 of 2018
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JUDGMENT
Shaji P. Chaly, J.
The writ petition is filed by the petitioners challenging Exts. P6 and P7 orders passed by the Upa Lok Ayukta in complaint No. 107 of 2018 dated 05.02.2018 and 16.02.2018 respectively. Order of the Upa Lok Ayukta dated 05.02.2018 reads thus:-
"The Tahsildar (LR) has produced before me a photostat copy of injunction order issued from OS 812/17. It is seen there from that it is a suit instituted by the complainant and others on whose behalf this complaint also is filed by the complainant. The said suit is one for an injunction restraining one Jayaseelan S/o Dasan from trespassing into the property of the complainant and committing waste therein and from destroying the boundaries thereof. Obviously, a suit instituted by the complainant and others on whose behalf this complaint is filed to arrest a threat of trespass does not stand in the way of effecting transfer of patta to the complainant and others for whom this complaint is filed from the patta which stands presently in the name of Gamaliel Justus vide patta No.4683. The Tahsildar (LR) submits that in view of the present clarification obtained in the matter he has no objection in effecting mutation in the name of the present complainant and others on whose behalf this complaint is filed.
The Tahsildar (LR) submits that mutation shall forthwith be effected and report shall be furnished before this Forum within W. P. (C) No. 13991 of 2018 -4- one week from today. He shall also give appropriate direction to the Village Officer to receive tax in consequence of effecting mutation. File report within one week and call on with the report on 16.02.2018."
2. It was taking note of the compliance of the said order Upa Lok Ayukta had passed Ext. P7 order dated 16.02.2018 recording that the mutation of the property is effected and tax is received for the entire property and therefore the complaint is closed.
3. It is thus challenging the legality and correctness of the said orders the writ petition is filed.
4. The paramount contention advanced in the writ petition is that Exts. P6 and P7 orders are passed during the pendency of a civil dispute and the said orders would interfere with the determination of rights in civil dispute. That apart it is submitted that as per the directions contained in Ext. P6 order, the Tahsildar has effected mutation of the property and made necessary entries in the revenue records which would stand against the rights claimed by the petitioners in the civil suit pending.
5. It is also submitted that the complainant / the 7 th respondent - W. P. (C) No. 13991 of 2018 -5- J. Jayakumar, has not impleaded the petitioners in the complaint before the Lok Ayukta and therefore the orders passed by the Upa Lok Ayukta is violative of the principles of natural justice.
6. That apart it is contended that in terms of Section 12 of the Kerala Lok Ayukta Act, 1999 the Lok Ayukta or the Upa Lok Ayukta has no jurisdiction to issue positive directions and therefore Exts. P6 and P7 orders are arbitrary and illegal, liable to be interfered with by this Court.
7. A detailed counter affidavit is filed by the 7th respondent in the writ petition, wherein it is stated as follows:-
"3. It is respectfully submitted that my father late Gamaliel Justus was the absolute owner in possession of 6 Ares 88 Sq. metre of landed property in Resurvey No 190/5-2 (Old Survey No.633/11) of Vellarada Village under Thandaper No.4683 of Vellarada Village Office. He obtained the aforesaid property by virtue of the Sale Deed No.629/1980 of Sub Registrar Office, Vellarada. He was paying land tax in respect of the said property since 1980. It is respectfully submitted that my father, Gamaliel Justus expired on 13/04/2007. After the death of my father, his right over the aforesaid property devolved upon me, my mother and my two brothers as his legal heirs. After getting legal heirship Certificate, we approached the village W. P. (C) No. 13991 of 2018 -6- officer, Vellarada to effect mutation with respect to the said property in favour of me and other legal heirs of Gamaliel Justus from the Thandaper No.4683 which stands in the name of Gamaliel Justus and to receive land tax in consequence of effecting mutation. But the Village Officer did not accept the land tax from us stating the reason that there is a civil case pending with respect to the said property before the Munsiff Court Neyyattinkara. So I filed Ext.P5 complaint before Lok Ayukta. By Ext.P6 order, Hon'ble Lok Ayukta gave direction to the 5th and 6th respondents herein to effect mutation and accept land tax from us. After complying with Ext. P6 order, Ext.P5 complaint was closed by Ext. P7 order.
4. It is respectfully submitted that the allegation of the petitioners that the Exhibit P5 complaint was filed during the pendency of civil dispute with the petitioners is not at all correct. In the year 1990, the 1st petitioner along with her mother and husband filed civil suit as OS.No.977 of 1990 before the Munsiff Court, Neyyattinkara against me, my father, Gamaliel Justus and my two brothers for permanent prohibitory injunction. The said suit was dismissed by the trial court on 27/06/1994. An appeal was preferred as AS.No. 15/1995 before the Sub Court, Neyyattinkara. The Appellate Court set aside the judgment in OS No.977/1990 and remanded the same to the trial court for fresh consideration by Exhibit P1 Judgment. After fresh trial and taking fresh evidence, the suit was dismissed by the trial court on 16/09/2006 by Exhibit P2 Judgment.
W. P. (C) No. 13991 of 2018 -7-
5. It is respectfully submitted that an appeal preferred against the Exhibit P2 Judgment was dismissed for default on 26/10/2015. Thereafter, an application for restoration of appeal with delay condonation was filed and it was allowed on 08/01/2016. Thereafter, I have filed an application to review the above order on the ground that the person who sworn the affidavit in support of the restoration petition expired as early as on 27/10/2011. So the above order dated 08/01/2016 was reviewed by dismissing the restoration application and delay condonation application on 20/01/2016. By suppressing the above facts, the 1st petitioner herein again filed application for restoration of appeal with delay condonation and the same was dismissed by common order dated 09/02/2017. Thus, there was no case pending before any court of law between the petitioners and me or any other legal heirs of the deceased Gamaliel Justus with respect to the said property when the Ext.P5 complaint was filed by me before Lok Ayukta on 30/12/2017. Therefore, the allegation of the petitioners that the Exhibit P5 complaint was filed during the pendency of civil dispute with the petitioners is false and baseless. It is pertinent to note that O.S.No.977/1990 is a suit for only simple injunction for restraining the defendants from trespassing into the plaint schedule property and committing waste therein. This suit does not stand in the way of effecting transfer of patta to me and other legal heirs of my father, Gamaliel Justus from the patta which stands in the name of Gamaliel Justus vide patta No.4683 and receiving land tax in consequence of effecting mutation. So also it is not necessary to implead the petitioners herein in the party array because Ext. P5 W. P. (C) No. 13991 of 2018 -8- complaint was filed by the 7th respondent herein only for directing the 5th and 6th respondents herein to effect mutation and to receive tax in consequence of effecting mutation. As far as the subject matter in the Ext. P5 complaint is concerned the petitioners are not necessary parties therein."
8. Relying upon the said contentions, learned counsel for the 7 th respondent submitted that when the complaint was filed before the Lok Ayukta in the year 2018, there was no decree or judgment against the 7th respondent / the complainant; however the Tahsildar as well as the Village Officer were reluctant to effect mutation in accordance with the provisions of the Transfer of Registry Rules, 1966 and receive tax respectively. According to the learned counsel for the 7 th respondent, it was in the above background alleging maladministration, complaint was filed before the Lok Ayukta and the complaint is perfectly maintainable because the definition of maladministration contained under Section 2(k) of the Kerala Lok Ayukta Act, 1999 makes it clear that inaction on the part of the competent statutory authority is maladministration.
9. We have heard learned counsel for the petitioner Sri. Neeraj Narayan, learned Senior Government Pleader Sri. V. Tekchand and Sri. W. P. (C) No. 13991 of 2018 -9- V. Sunil Kumar for the 7th respondent / complainant and perused the pleadings and material on record.
10. The paramount contention advanced by the petitioners is that against the dismissal of I. A. No. 2876 of 2016 and I. A. No. 2877 of 2016 in A. S. No. 81 of 2015, the writ petitioners have preferred a first appeal against the order in the year 2017 and therefore the civil proceedings by and between the parties is not concluded and due to which the Upa Lok Ayukta was not right in issuing directions to the Tahsildar and the Village Officer to effect mutation and accept tax.
11. On the other hand, relying upon the fact circumstances put forth in the counter affidavit extracted above, learned counsel for the 7th respondent submitted that the suit was dismissed as early as on 27.06.1994, however the appellate court interfered with the same in A. S. No. 15 of 1995 and remanded the matter back for de novo consideration. It is further pointed out that after fresh trial and taking fresh evidence, the suit was dismissed by the trial court again on 16.09.2006 as per Ext. P2 judgment.
12. It seems against Ext. P2 judgment an appeal was preferred which was dismissed for default on 26.10.2015. On an application W. P. (C) No. 13991 of 2018 -10- filed by the writ petitioners, the appeal was restored on 08.01.2016, but on a review application filed by the 7th respondent stating that the person who had sworn to the affidavit expired in the year 2011, the restoration order was reviewed and the restoration application and the delay condonation petition was dismissed on 20.01.2016.
13. It is the further case of the 7 th respondent that by suppressing the above facts, the 1st petitioner again filed an application for restoration of appeal with delay condonation and the same was dismissed by common order dated 09.02.2017. According to the writ petitioners herein, challenging the said order, a first appeal is preferred before this Court, which is pending consideration.
14. But from the facts and circumstances and the submissions made by the learned counsel for the petitioners, it is clear that in the first appeal against order filed, no orders are passed by this Court interfering with the order passed by the appellate court in the review application and the delay condonation petition.
15. It is also clear from Ext. P2 judgment passed by the Munsiff's Court, Neyyattinkara in O. S. No. 977 of 1990 that the suit was filed for a permanent prohibitory injunction restraining the 7 th W. P. (C) No. 13991 of 2018 -11- respondent and others from trespassing into plaint B schedule property and committing waste therein.
16. Therefore it can be seen that there is no order, decree or judgment conferring any right or title or interest in favour of the writ petitioners. On evaluating the rival submissions made across the Bar, we are of the view that when an application is submitted before the authority under the Transfer of Registry Rules, 1966 along with requisite documents, the said authority has to make due enquiries, in accordance with law, and arrive at a conclusion as to whether the applicant is entitled to Transfer of Registry of the property in question.
17. It is an admitted fact that the 7 th respondent and others had title over the property and the relief sought for in the suit by the writ petitioners is only for a permanent prohibitory injunction restraining the 7th respondent and others from trespassing into an extent of 10 cents of property or so. We are also of the definite opinion that mere pendency of a civil proceeding before this court which is not connected with any challenge to the title held by the 7 th respondent and consequent declaration thereof, would not stand in the way of the authority under the transfer of registry rules to consider an application W. P. (C) No. 13991 of 2018 -12- by making due enquiry in accordance with law.
18. Considering the facts and circumstances as deliberated above, we are of the opinion that the directions given by the Upa Lok Ayukta cannot be said to be totally perverse or illegal. It is true, normally, when inaction on the part of an authority is pointed out, the authority ought to have been directed to consider the application, in accordance with law. But the facts and circumstances of the case on hand, make it clear that the suit was filed by the petitioners in the year 1990, which was dismissed, however the appellate court directed the trial court to reconsider the matter again.
19. We take note of the fact that the trial court, after considering the matter de novo, again dismissed the suit and in the appeal filed before the appellate court, the writ petitioners could not secure any order, but on the other hand, it was dismissed for default. Though an application filed for restoration along with a delay condonation petition was allowed,later reviewed in a review petition filed by the 7 th respondent and others. Even though first appeal is filed against the said common order, the writ petitioners could not secure any order, either interim or final. Moreover the Lok Ayukta has passed Ext. P6 order as W. P. (C) No. 13991 of 2018 -13- early as on 05.02.2018.
20. Considering the said aspects and in the interest of justice, we do not propose to interfere with the orders passed by the Upa Lok Ayukta by exercising our discretion conferred under Article 226 of the Constitution of India and therefore the reliefs sought for in the writ petition against Exts. P6 and P7 impugned orders of the Upa Lok Ayukta is declined.
21. However, we make it clear that if the writ petitioners secure any decree / judgment / order conferring title or rights over the property, the liberty of the petitioners are left open to approach the authority under the Transfer of Registry Rules, 1966 for effecting mutation.
22. This we say because by making the Transfer of Registry under Rules 1966, the authority is not conferring any title, but on the other hand it is done only for fiscal purpose of the revenue.
We are also of the view that when a declaration of title or right is made by a competent civil court, the beneficiary of the said decree / judgment / order conferring right or title is entitled to approach the W. P. (C) No. 13991 of 2018 -14- authority under the Rules 1966 with a suitable application and in that event, the authority has to adjudicate the issue, in accordance with law, and take appropriate decision.
Therefore the writ petition is dismissed; however with the above observations.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 13991 of 2018 -15- APPENDIX OF WP(C) 13991/2018 PETITIONER EXHIBITS EXBIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 25.1.1999 IN A.S. NO. 15/1995 ON THE FILES OF SUB COURT, NEYYATTINKARA.
EXBIBIT P2 A TRUE COPY OF THE JUDGMENT DATED
16.09.2006 IN O.S NO. 977 OF 1990 ON THE
FILES OF I ADDL. MUNSIFF COURT,
NEYYATTINKARA.
EXBIBIT P3 A TRUE PHOTOCOPY OF THE MEMORANDUM OF
FIRST APPEAL FROM ORDER AGAINST COMMON
ORDER DATED 09.02.2017.
EXBIBIT P4 A TRUE COPY OF THE LAND TAX RECEIPT
DATED 24.04.2017 ISSUED BY VILLAGE
OFFICER, VELLARADA.
EXBIBIT P5 A TRUE PHOTOCOPY OF THE COMPLAINT BY NO.
107/2018C BEFORE THE HON'BLE LOK AYUKTA.
EXBIBIT P6 A TRUE TYPED COPY OF THE INTERIM ORDER
DATED 05.01.2018 ON THE FILES OF HON'BLE
LOK AYUKTHA.
EXBIBIT P7 A TRUE COPY OF THE ORDER DATED 16.2.2018
ON THE FILES OF HON'BLE LOK AYUKTHA.
EXBIBIT P8 A TRUE COPY OF THE INTERIM ORDER DATED
20.06.2017 IN WPC NO. 20294 OF 2017.