Kerala High Court
Joseph Bastian vs Judith Antony on 18 February, 2021
WA.No.356 OF 2021 -1-
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 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942
WA.No.356 OF 2021
AGAINST THE JUDGMENT IN WP(C) 15984/2020(S) OF HIGH COURT OF
KERALA
APPELLANT/S:
JOSEPH BASTIAN
AGED 56 YEARS
S/O. BASTIAN, KURUSUPARAMBIL HOUSE, 9/392A, HOLY
CROSS NAGAR, NAZARETH, COCHIN - 682002.
BY ADV. SRI.T.O.XAVIER
RESPONDENT/S:
1 JUDITH ANTONY
9/392A, KURUSUPARAMBIL HOUSE, 9/392A, HOLY CROSS
NAGAR, NAZARETH, COCHIN - 682002.
2 GEETHU ANTONY
D/O. ANTONY, 9/392A, KURUSUPARAMBIL HOUSE, 9/392A,
HOLY CROSS NAGAR, NAZARETH, COCHIN - 682002.
3 GLINTIA ANTONY
D/O. ANTONY, 9/392A, KURUSUPARAMBIL HOUSE, 9/392A,
HOLY CROSS NAGAR, NAZARETH, COCHIN - 682002.
4 GRINSHA ANTONY
D/O. ANTONY, 9/392A, KURUSUPARAMBIL HOUSE, 9/392A,
HOLY CROSS NAGAR, NAZARETH, COCHIN - 682002.
5 THE TAHSILDAR(LA)
TALUK OFFICE, KOCHI - 682011.
6 THE REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE, FORT KOCHI - 682001.
WA.No.356 OF 2021 -2-
7 THE DISTRICT COLLECTOR,
COLLECTORATE, CIVIL LANES, KAKKANAD, ERNAKULAM -
682030.
8 THE VILLAGE OFFICER,
RAMESWARAM VILLAGE, PALLURUTHY, COCHIN - 682006.
9 THE DISTRICT SOCIAL JUSTICE DEPARTMENT
THE DISTRICT SOCIAL DEPARTMENT OFFICE, CIVIL
STATION, B BLOCK, ERNAKULAM, REPRESENTED BY THE
DISTRICT SOCIAL JUSTICE OFFICER- 682030.
10 THE SUB REGISTRAR OFFICER,
OFFICE OF THE SUB REGISTRAR, MATTANCHERRY - 682308.
SRI.T.MADHU FOR R1 TO R4,
SRI. ARAVIND KUMAR BABU, SR GP FOR R5 TO R10
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.356 OF 2021 -3-
JUDGMENT
Dated this the 18th day of February, 2021
S. Manikumar, C. J.
Petitioner seem to have sent a representation, Ext. P7 dated
07.05.2020, to the District Collector, Ernakulam, the 7th respondent.
Contending inter alia that the representation has not been disposed of,
petitioner has filed W. P. (C) No. 15984 of 2020 for a mandamus,
directing the 7th respondent, to consider and pass final orders on Ext.
P7 representation, within a reasonable time, as this Court deem fit.
2. Adverting to the pleadings and submissions, writ court by
judgment dated 20.01.2021 in W. P. (C) No. 15984 of 2020, passed the
following order:-
"3. The petitioner is one of the sons of Bastian viz. Joseph
Bastian. His grievance is that, on the death of his brother Antony,
his wife Judith Antony, the first respondent herein is attempting
to obtain mutation of the property; he conveyed his one third
right to Antony on the specific condition that their brother Soly
would be taken care of by him. He came to know about the
conveyance of one third share of Soly in favour of Antony, only
recently. Soly being a mentally retarded person, his rights could
not have been conveyed without following the procedures
prescribed under law, and hence the conveyance is bad. The
petitioner seeks for a direction to the 7th respondent for
cancellation of Document no.5302/2001.
The remedy of the petitioner lies before a civil court
wherein he could challenge the conveyances on the grounds
available under law. No orders are called for in this writ petition.
The writ petition is accordingly dismissed."
3. Assailing the correctness of the judgment, instant appeal is
filed on the following grounds:-
"A. The appellant most humbly submits that the learned
Single Judge has observed in the impugned judgment that the
appellant has to raise his contentions before the civil court.
However, the learned single judge failed to consider the fact that
the petitioner has filed the above writ petition to protect the
interest and right of his physically handicapped brother and the
impugned judgment is against the spirit of the National Trust Act.
B. The appellant most humbly submits that the learned
Single Judge ought to have considered the fact that the appellant
had approached before respondent Nos. 6, 7 and 8 and submitted
representations for appropriate remedy. Since no action was
taken on the same, the appellant approached this Hon'ble Court
for appropriate remedy.
C. It is further submitted that in the counter affidavit, the
5th respondent has stated that a direction was issued to publish
notice in the notice board of the Taluk Office, Village Office and
Municipal Corporation office to raise objections with regard to
the effecting mutation in favour of respondent Nos. 1 to 4.
However, the appellant had not seen such a notice. It is the duty
of the 5th respondent to intimate the appellant before effecting
mutation. No such steps were taken by the 5th respondent.
4. Though Mr. T. O. Xavier, learned counsel for the appellant,
made submissions on the abovesaid grounds, going through the
material on record, we are of the view that, there are factual issues to
be decided, as regards execution of documents, release deed, physical
condition of Mr. Soly etc.
5. Instead of approaching the civil court for a comprehensive
relief, in respect of the subject properties in dispute, appellant has sent
a representation to the District Collector, Ernakulam, the 7 th
respondent, requesting him to advert to the validity of the documents.
Appellant has requested the District Collector to take legal action and
to give back the property to Mr. Soly, who according to the appellant,
is dispossessed by the execution of the document bearing No. 5302 of
2001, on the file of the Sub Registrar, Kochi.
In the light of the above, we are of the view that the District
Collector has no jurisdiction to initiate action. Writ petition is wholly
misconceived and rightly dismissed by the learned Single Judge by
expressing the view that the remedy of the appellant lies before the
civil court.
Accordingly, writ appeal is dismissed.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
JUDGE
Eb
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P. A. TO JUDGE
