Subramanian.K vs The Sub Registrar
2021 Latest Caselaw 14189 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
        THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
                        WP(C) NO. 12459 OF 2021
PETITIONER:

            SUBRAMANIAN.K
            AGED 62 YEARS
            S/O.KANDAN(LATE),SURYA NIVAS,10/616(OLD NO-
            4/484),AMBALAKKAD,KALLEPULLY.P.O, PALAKKAD,
            KERALA-678005.

            BY ADV B.JITHU



RESPONDENTS:

    1       THE SUB REGISTRAR
            PALAKKAD SUB REGISTRAR OFFICE,CIVIL STATION
            BUILDING,PALAKKAD-678001.

    2       THE VILLAGE OFFICER
            PALAKKAD-II VILLAGE OFFICE,PARAKKUNNAM,
            PALAKKAD-678001.

    3       MALAMPUZHA GRAMA PANCHAYATH,
            MALAMPUZHA.P.O,PALAKKAD-678651.REPRESENTED BY ITS
            SECRETARY.
            EMAIL ID:ddpmalampuzhapkd @ gmail.com.

    4       SECRETARY,
            MALAMPUZHA GRAMA PANCHAYATH,MALAMPUZHA.P.O,
            PALAKKAD-678651.
            EMAIL ID:[email protected]


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 12459 OF 2021

                                     2




                        P.V.KUNHIKRISHNAN, J
                      --------------------------------
                       W.P.(C).No.12459 of 2021
                       -------------------------------
                   Dated this the 08th day of July, 2021


                               JUDGMENT

The petitioner who is a member of the scheduled caste

community is behind the 1st respondent for registering a

document. According to the petitioner, the 1 st respondent insisting

unnecessary documents for registration, when the documents

already produced are more than sufficient for registration.

2. The short facts are like this:- The petitioner is in

possession, ownership and enjoyment of 2.17 Cents of property

situated in Block No.16 in Survey No.727/67 of Palakkad - II

Village, Palakkad Taluk vide Sale Deed No.5883/2009 of Palakkad

SRO. For the medical treatment of petitioner's wife, the petitioner

decided to sell the above property to one Muthukrishnan and sale

agreement was entered. For registration purpose, the petitioner WP(C) NO. 12459 OF 2021

obtained Encumbrance Certificate of the property having an

extent of 2.17 Cents. Ext.P1 is the Encumbrance Certificate. In

Ext.P1, it is stated that an agreement is executed with

Malampuzha Grama Panchayath on 08.09.2010 and the same is

endorsed as an encumbrance to the property. When the petitioner

approached the Panchayath, the Panchayath issued Ext.P2 No

Objection Certificate, in which it is stated like this :

"മ ൽ സചന പകര ശ കക സബ ണൻ, അമലകട, കമ പള എനവരകട ഉട സതയലള പലകട 2 വമ ജൽക*ട മ,ക 16 റസർമ0 727/1 ഡ ഉൾക*ട 2.17 കസന സല ലമഴ ഗ പഞയതകന പരധയൽ വരന എന, സല ഉട യ നളതവകരയയ ഈ ഗ പഞയതൽ നന യകത ര ധനസഹയവ നൽകയട എന വസസബന യ ബധത സർടഫകറൽ (1054/21) 08/09/2010 കല 6583/2010 നമർ, വല 2335 പകര ലമഴ ഗ പഞയത കസകടറയകട മപരൽ ഉടമട നലനൽകനത ഒഴവക നൽകനതന ഗ പഞയതന യകത രവധ ആമMപവ ഇ എനഇതനൽഅറയചകകളന.

ഈകതകരജമQഷൻആവശതന ത നലയടളത ണ."

3. Ext.P2 was produced before the 1 st respondent along

with the original of the Ext.P3 Sale Deed for registration. But the

1st respondent refused to register the document because of the

entry in Ext.P1 Encumbrance Certificate about the alleged

agreement with the Panchayath. Thereafter the petitioner again WP(C) NO. 12459 OF 2021

applied for fresh Encumbrance Certificate but again the same

Encumbrance Certificate was issued as Ext.P4. The contention of

the petitioner is that the agreement referred in Exts.P1 and P4 is

Ext.P5. It was an agreement executed by the petitioner with the

3rd respondent - Panchayath on 08.09.2010 for getting benefits

under the EMS Housing Scheme. The counsel for the petitioner

takes me through Ext.P5 agreement, in which it is stated that the

petitioner cannot alienate or encumber the property for a period

of ten years from the date of agreement.

4. Admittedly, the agreement was on 8.9.2010 and the

period of the agreement is also over. The counsel submitted that

in the light of Ext.P5 agreement and also in the light of Ext.P2 No

Objection Certificate issued by the Panchayat the 1 st respondent

erred in not registering the original of Ext.P3 Sale Deed.

Therefore this writ petition is filed

5. The Government Pleader after getting instruction

submitted that eventhough in Ext.P2 No Objection Certificate, it is

stated that the Grama Panchayat has no objection to cancel WP(C) NO. 12459 OF 2021

Ext.P5 agreement, unless the cancellation deed is produced, the

1st respondent is not in a position to register the document. This is

the sum and substance of the argument of the Government

Pleader. The Government Pleader also submitted that in Exts.P1

and P4 Encumbrance Certificates, Ext.P5 agreement is mentioned

and unless the same is removed there is difficulty in executing the

Sale Deed.

6. When this matter came up for consideration this court

issued notice to the respondents Nos.3 and 4. It is true that there

is endorsement from the Registry that the service is not

complete. But the counsel for the petitioner produced document

to show that they sent the writ petition to the Panchayath through

e-mail. It is produced with a memo. The counsel also submitted

that the notice is already received by the Panchayath on

02.07.2021 and since the new committee has not appointed a

Standing Counsel in the High court, the Panchayath has not

engaged anybody before this court.

7. The counsel for the petitioner submitted that there is WP(C) NO. 12459 OF 2021

urgency in the matter. The counsel submitted he will take the

risk, if there is any objection from the Panchayath in future. The

petitioner also filed an affidavit in which it is stated that the

petitioner and his son enquired with the office of the Panchayath

and came to know that the notice issued by this court was

delivered with the respondents Nos.3 and 4 on 02.07.2021. The

counsel also submitted that there is urgency to the petitioner. The

counsel submitted that the wife of the petitioner is suffering from

cancer and the surgery is scheduled on 15.7.2021. Therefore the

petitioner wants money for treatment and that is why he is

decided to sell the property.

8. Considering the facts and circumstances of the case, I

think the notice to respondent Nos.3 and 4 can be dispensed with.

I make it clear that, if respondents Nos.3 and 4 are aggrieved by

any of the directions in this judgment, they are free to file a

review petition.

9. It is an admitted fact that the petitioner is the absolute

owner of 2.17 cents of property situated in block No.16 in Sy WP(C) NO. 12459 OF 2021

no.727/67 of Palakkad-II Village vide Sale Deed No.5883/2009 of

Palakkad SRO. The 1st respondent refused to register the original

of Ext.P3 mainly for the reason that there is an entry in Exts.P3

and P4 Encumbrance Certificate to the effect that there is an

agreement with the panchayat by the petitioner. The petitioner

produced that agreement as Ext.P5. Agreement was dated

08.09.2010. In the agreement it is only stated that the petitioner

shall not alienate or encumber the property for a period of ten

years from the date of the agreement. That period is already

over. Moreover, in Ext.P2 No Objection Certificate issued by the

Secretary of 3rd respondent - Panchayath, it is clearly stated that

they have no objection in removing the entry in the Encumbrance

Certificate. Therefore, I think there can be a direction to the 1 st

respondent to register the original of Ext.P3 Sale Deed. Therefore,

this writ petition is allowed with following directions:-

1) 1st respondent is directed to accept original of

Ext.P3 Sale Deed and register the same in accordance to law,

if it is otherwise in order.

WP(C) NO. 12459 OF 2021

2) I make it clear that, the 1st respondent shall not

insist any further "No Objection Certificate" from the 3rd and

4th respondent, in the light of Ext.P2 "No Objection

Certificate" issued by the 3rd respondent - Panchayath, for the

purpose of registering original of Ext.P3 Sale Deed.

3) The 1st respondent will efface the entry in Exts.P1

and P4 Encumbrance Certificates about the agreement

executed with the Panchayath, if cancellation agreement is

produced by the petitioner from the Panchayath before the 1 st

respondent. The consequential steps also should be taken by

the 2nd respondent - Village Officer also. Issue a copy of this

judgment today itself.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

VPK WP(C) NO. 12459 OF 2021

APPENDIX OF WP(C) 12459/2021

PETITIONER ANNEXURE

Exhibit P1 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE ID NO.P1796802 DATED 20.01.2021 ISSUED BY THE RESPONDENT NO.1.

Exhibit P2 TRUE COPY OF THE COMMUNICATION NO-A2.2639/2021 DATED 29.04.2021 ISSUED BY THE RESPONDENT NO-4 IN FAVOUR OF RESPONDENT NO-1.

Exhibit P3 TRUE COPY OF DRAFT SALE DEED DATED 30.04.2021 SUBMITTED BEFORE THE 1ST RESPONDENT.

Exhibit P4 TRUE COPY OF THE ENCUMBRANCE CERTICATE ID NO.P19139854 DATED 31.05.2021 ISSUED BY THE RESPONDENT NO.1.

EXHIBIT P5 TRUE COPY OF THE CERTIFIED COPY OF AGREEMENT NO.6583/2010/1 DATED 08.09.2010 OBTAINED FROM THE OFFICE OF RESPONDENT NO.1

EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT DULY SIGNED BY THE NOTARY PUBLIC DATED 31.05.2021