Sri. Ajith Chacko vs State Of Kerala
2021 Latest Caselaw 15568 Ker

WP(C) NO. 11938 OF 2021         1



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
        FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                        WP(C) NO. 11938 OF 2021


PETITIONER/S:



           SRI. AJITH CHACKO,
           AGED 44 YEARS,
           S/O. CHACKO, KUNNUMPURATH (H), MUVATTUPUZHA P.O.,
           ERNAKULAM DISTRICT-686661.



           BY ADVS.
           ENOCH DAVID SIMON JOEL
           S.SREEDEV
           RONY JOSE
           SUZANNE KURIAN



RESPONDENT/S:


    1      STATE OF KERALA,
           REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE,
           GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

    2      THE SUB REGISTRAR,
           SUB-REGISTRAR'S OFFICE, THRIPPUNITHURA, ERNAKULAM-
           682301.

    3      THE TAHSILDAR (RR),
           KANAYANNUR TALUK, ERNAKULAM-682312.

    4      THE VILLAGE OFFICER,
           MANAKUNNAM VILLAGE, ERNAKULAM-682312.

    5      STATE TAX OFFICER( WORKS CONTRACT) ,
           OFFICE OF THE STATE TAX OFFICER, OLD RAILWAY STATION
           ROAD, ERNAKULAM-682018.
 WP(C) NO. 11938 OF 2021      2

    *6    JOSE THOMAS (DELETED)
          KIZHAKKUMPURATH, KADAVOOR DESAM, KOTHAMANGALAM TALUK,
          ERNAKULAM-686671.

    *     R6 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED
          14.07.2021 IN IA 1/2021 OF WP(C) 11938/2021.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 11938 OF 2021              3

                                    JUDGMENT

This writ petition is filed seeking directions to the 2nd respondent to

efface the attachment dated 21.02.2017 issued by the 3rd respondent from

Ext.P5 encumbrance certificate in respect of Ext.P1 sale deed.

2. It is the case of the petitioner that on 05.12.2007, Ext.P1 sale

deed was executed in his favour by the Managing Partners of a partnership

firm by the name 'M/s.Souparnika Group'. The petitioner effected the transfer

of registry in his name and he has been remitting tax as is evident from

Ext.P3. Ext.P2 is the possession certificate issued in his favour by the revenue

authorities.

3. The petitioner contends that he applied for and obtained Ext.P5

encumbrance certificate dated 06.05.2021 for the purpose of availing a loan.

He realized to his dismay that certain sales tax arrears were due from the

partners of the firm, Souparnika Group, for the period from 2009 to 2015, and

for the purpose of realizing the said amount, the property purchased by the

petitioner had been attached by the 3rd respondent by proceedings dated

18.02.2017. Immediately thereafter, an endorsement with respect to the

attachment was made in the revenue records.

4. The petitioner contends that the sales tax arrears were for the

period from 2009 to 2015. This due had accrued much after the purchase of

the property on 05.12.2007. The period of alleged revenue arrear and creation

of the charge having occurred after the purchase of the property by the

petitioner, he cannot be burdened with the encumbrance, is the contention.

It is in the above backdrop that the petitioner has approached this Court

seeking the following reliefs:

(i) Issue a writ of mandamus, or any other appropriate writ, order or direction, directing the 2nd respondent to efface the revenue attachment dated 21.02.2017 issued by the 3rd respondent from Ext.P5 Encumbrance certificate with respect to 2.02 Ares of property in Re.Sy.No.233/2 in Block No.19 of Manakunnam Village, Kanayannur Taluk obtained by the petitioner by virtue of Sale Deed No.5577/2007 of Thrippunithura SRO.

5. The learned Government pleader, on instructions, submitted that

the attachment was effected on 18.2.2017 for the tax arrears due from the

former owners for the period from 2009 - 2015.

6. I have considered the submissions and have gone through the

records.

7. It is borne out from Ext.P1 that the property admeasuring 2.02

Ares falling in Re-Sy.No.233/2 in Block No.19 of Manakunnam Village was

purchased by the petitioner on the cover of Ext.P1 sale deed on 05.12.2007.

Admittedly, it was for realizing the sales tax arrears due from the previous

vendor for the period from 2009-2015, that the attachment was effected on

18.02.2017. Thus, there cannot be any doubt that the property was purchased

by the petitioner much prior to the accrual of the liability and the subsequent

order of attachment.

In that view of the matter, the petitioner is entitled to succeed. There will

be a direction to the 2nd respondent to efface the revenue attachment dated

21.02.2017 issued by the 3rd respondent from Ext.P5 encumbrance certificate

in respect of the property covered under Ext.P1 sale deed and the 2nd

respondent is directed to issue fresh encumbrance certificate without noting

any liabilities of the previous owner accrued after 5.12.2007, the date of

execution of Ext.P1.

This writ petition is disposed of.

SD/-

RAJA VIJAYARAGHAVAN V JUDGE NS

APPENDIX OF WP(C) 11938/2021

PETITIONER(S) EXHIBITS :

Exhibit P1 A TRUE COPY OF THE SALE DEED NO.5577 OF 2007 OF THRIPPUNITHURA SRO.

Exhibit P2 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 13.4.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit P3 A TRUE COPY OF THE TAX RECEIPT DATED 11.4.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit P4 A TRUE COPY OF THE OWNERSHIP CERTIFICATE OF BUILDING BEARING NO.398/J IN WARD 5 DATED 13.11.2020 ISSUED BY UDAYAMPEROOR GRAMA PANCHAYATH.

Exhibit P5 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 6.5.2021 ISSUED BY THE SUB REGISTRAR, THRIPPUNITHURA.

Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 29.3.2021 IN WP(C) 3166/2021 ON THE FILES OF THIS HON'BLE COURT.

RESPONDENT(S) EXHIBITS :         NIL