THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No. 4718 of 2016
ORDER:
This writ petition is filed challenging the proceedings No. A5/07966/2015, dated 20.01.2016, whereby the respondent No. 2, Nizamabad Municipal Corporation, had refused to effect the mutation of the petitioner's name in respect of property bearing house No. 6-2-157/15 on Plot No. 15, situated at Subhash Nagar, Nizamabad and advised him to settle the matter in Court of law.
The petitioner herein is none other than the paternal uncle's son-in-law of respondent No. 3. The case of the petitioner is that he is the absolute owner and possessor of the R.C.C. roofed residential house with open place, constructed on Plot No. 15, situated at Subhash Nagar, Nizamabad having purchased the same from his wife, mother-in-law and brother-in-law under a registered sale deed bearing document No. 4091/2015, dated 04.04.2015. Subsequent to the said purchase, the petitioner made an application on 11.05.2015 before the Nizamabad Municipal Corporation, the respondent No. 2 herein, to mutate the property on his name in the Municipal Records. However, instead of mutating the property on the name of the petitioner in the records, the respondent No. 2 informed the petitioner orally that the name of respondent No. 3 is already reflecting in the municipal records in respect of the said property. On enquiry, the petitioner came to know that the claim of the respondent No. 3 is based on a registered gift deed executed by his father Mr. S. Rama Goud, who is none other than the younger brother of late Narsa Goud, the father-in-law of the petitioner. According to the petitioner, late 2 Samala Ganga Goud bequeathed the subject property to his elder son, Narsa Goud under a notarized will deed, dated 24.06.1995. On 11.8.2001, Mr. Narsa Goud died leaving the vendors of the petitioner as his legal heirs apart from Mr. Samala Sunil Kumar. However, Mr. Sunil Kumar also died and therefore, his share of property had fallen to the share of the wife of the petitioner, Mrs. Samala Sirisha, under a notarized family settlement deed, dated 17.09.2012 and 26.10.2012. Thus, the vendors of the petitioner, who are none other than the legal representatives of late Sri Narsa Goud, being the absolute owners of the subject property, had executed the registered sale deed in favour of the petitioner.
However, Mr. Rama Goud, the younger brother of Narsa Goud, had obtained a family member certificate from Tahsildar, Velpur Mandal, Nizamabad District by playing fraud, falsely claiming that he is the only son of late Ganga Goud. Immediately, the vendors of the petitioner had approached the Revenue Divisional Officer, Nizamabad and got cancelled the said family member certificate issued by the Tahsildar, vide proceedings dated 15.06.2015. That even before the Revenue Divisional Officer, Mr. Rama Goud, in written, had reported 'no objection' for cancellation of the said family member certificate. Disclosing the above said facts, the petitioner has made a representation, dated 18.06.2015 with the respondent No. 2 to effect the mutation of his name in the municipal records in respect of the subject property with a request to cancel the mutation effected in the name of respondent No. 3. As a result, the respondent No. 2, vide proceedings dated 18.09.2015, cancelled the mutation proceedings issued in favour of 3 the respondent No. 3, after conducting enquiry. However, the respondent No. 2, instead of effecting the mutation of the name of the petitioner in the municipal records, had instructed him as well as the respondent No. 3 to settle the matter in the court of law. Again, by duly enclosing all the documents, the petitioner made another representation to the respondent No. 2 on 13.10.2015. Through the proceedings, dated 20.01.2016, the respondent No. 2 again refused to mutate the name of the petitioner in the records, without assigning any reasons.
The respondent No. 2 filed a counter affidavit stating that since there is a rival claim in respect of the subject property by both the petitioner as well as the respondent No. 3, the Corporation advised both the parties to approach the competent civil Court, as the respondent No. 2 has no jurisdiction to decide the civil disputes.
The respondent No. 3 filed a counter affidavit stating that the subject property being ancestral property, he got a right over the same and therefore, his name was mutated in the municipal records. Having fully aware of the existing dispute with regard to execution of the notarized will, the petitioner got a nominal sale deed executed by his mother-in-law, wife and brother-in-law on 04.04.2015. Therefore, in view of the rival claim as to the title of the property, the respondent No. 2 had rightly directed the petitioner to approach the civil court for adjudication of the dispute.
Heard the learned counsel for the parties and perused the material available on record.
4
The main contention of the learned counsel for the petitioner is that the father of the respondent No. 3, himself had submitted a notarized affidavit, dated 30.03.2000 to the respondent No. 2 to the effect that he has no objection to transfer the ownership of the subject property in favour of his brother, namely late Sri Narsa Goud, followed by another affidavit, dated 04.06.2001. Even during the course of enquiry before the Revenue Divisional Officer, Nizamabad, Sri Rama Goud gave his deposition to that effect on 13.06.2015. In light of the said affidavits of Rama Goud, the impugned proceedings issued by respondent No. 2 advising the petitioner to approach the Court of law to settle the matter is non- application of mind and against the provisions of the GHMC Act, 1955.
The relevant portion of the impugned order of the respondent No. 2 reads as under:-
"In this Connection, it is inform (sic.) that one Sri. Mohan Kumar, S/o. Venkataiah has submitted objection petition on dt:- 18.06.2015 for cancellation of above mutation by enclosing copies of 1) Registered Sale Deed No. 4091/2015, Dt:-04.04.2015 executed by Samala Sulochana, W/o. Late S. Narsa Goud i) Ravula Rupa W/o.R. Mohan Kumar, ii) Samala Srikanth S/o. S. Narsa Goud in favour of R. Mohan Kumar S/o. R. Venkataiah, 2) Death Certificate by showing deceased Ganga Goud died on 10-05-1996,
3) Proceedings of RDO, Nizamabad by canceling family member certificate issued by Tahsildar, Velpur in favour of S. Rama Goud.
In view of the legal dispute, Sri. Ravula Mohan Kumar is hereby advised to settled (sic.) the matter in Court of Law."
In view of the rival title dispute over the subject property between the petitioner and the respondent No. 3, the respondent No. 2 has advised him to approach the civil Court to resolve the dispute, instead of mutating the name of the petitioner in the municipal records, as sought for in his application dated 13.10.2015. It is this order of respondent No. 2 that is sought to be challenged in the present writ petition.
5
Admittedly, as seen from the pleadings and the record, the Municipal Authorities vide proceedings dated 18.08.2015 have cancelled the mutation proceedings issued in favour of the respondent No.3 after conducting due enquiry, and the name of the original owner, Sri Narsa Goud, was restored. This order, dated 18.08.2015, has become final as the same was not challenged by any person much less the respondent No.3 herein. When the family members of late Sri Narsa Goud executed the sale deed in favour of the petitioner and he in turn has filed a representation to mutate the name of the petitioner, the authorities have rejected the same on the ground that the respondent No.3 has filed his objection.
A perusal of the impugned order clearly shows that the respondent No.2 has lost sight of the fact that the authorities themselves vide order dated 18.09.2015 have already cancelled the mutation in favour of the respondent No.3 and the said order had become final. When such is the case, it is not understandable as to how the objection of the respondent No.3 can be entertained once again by the very same authority to reject the application for mutation in favour of the petitioner. The earlier order of mutation in favour of respondent No.3 was cancelled after it was revealed in the enquiry that the very same basis for laying claim to the subject property by the respondent No.3 i.e., the Legal Heir Certificate issued by the Tahsildar in favour of the respondent No.3 was obtained by fraud and the Tahsildar has cancelled the said Legal Heir Certificate on the representation of the petitioner. If the respondent No.3 has any claim to the property, his remedy is to approach the Civil Court and seek a suitable remedy as available 6 under the law. Once the Legal Heir Certificate issued by the Tahsildar is set aside, he has no other document to prove that he has any right or title over the property, which admittedly is in the name of Late Sri Narsa Goud. This crucial fact was lost sight by the authorities and on an erroneous appreciation of facts and law, the application of the petitioner was rejected, which act/order cannot be countenanced. The authorities cannot reject the application for mutation of a family member on the objection filed by all and sundry. When the immediate family members of late Sri Narsa Goud do not have any objection for mutation in the name of the petitioner and as they themselves have executed a registered sale deed in favour of the petitioner, the authorities should have mutated the petitioner's name instead of rejecting the application only on the ground that the respondent No.3 has filed his objections.
As held by this Court as well as the Hon'ble Supreme Court in a catena of judgments, mere mutation of name of a person will not divest the original owner of his title or right. If the respondent No.3 has any claim, his remedy is to file a civil suit for an appropriate remedy as available under the law, but he cannot file an objection petition for mutating the name of the petitioner, once an adverse order is passed against him and the same has become final. If the objections of all and sundry are entertained to reject the mutation application made by genuine owner or legal representative, the same this will not only result in anarchy but also in aiding and abetting the land grabbers and depriving the legitimate and rightful owners from enjoying their property. The respondent No. 3 has not even filed a single document to support 7 his case, but on the other hand, it is an admitted fact that the property stands in the name of late Narsa Goud and the legal representatives of Narsa Goud have executed a registered sale deed in favour of the petitioner and have no objection for mutating his name in the municipal record. In view of the above mentioned facts and circumstances, the order of the respondent No.2 cannot be allowed to stand and the same is liable to be set aside.
For the forgoing reasons, the writ petition is allowed and the order passed by the respondent No.2 is set aside. Consequently, the respondent No.2 is directed to mutate the name of the petitioner in the Municipal Records. However, this order of mutation will be subject to the result of any suit likely to be filed by the respondent No.3.
Miscellaneous petitions pending in this writ petition, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date: 23.03.2021 Tsr