Kerala High Court
Omana Cyriac vs Sunitha James on 3 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Wednesday, the 3rd day of November 2021 / 12th Karthika, 1943
WA NO. 1437 OF 2021
AGAINST JUDGMENT DATED 15-09-2021 IN WP(C) 15004/2021 OF THIS COURT.
---
APPELLANTS/RESPONDENTS 7 TO 9:
1.OMANA CYRIAC,AGED 64 YEARS,
W/O.LATE CYRIAC,VELLARINGATTU HOUSE,
KOOVAPPALLY KARA,KOOVAPPALLY P.O.,
KUDAYANNUR VILLAGE,THODUPUZHA TALUK, IDUKKI DISTRICT,PIN-685590,
(PROPRIETRIX,TIARA BEAUTY SHORE AND SPA,
KALLEL COMPLEX,S.H.40,
THODUPUZHA, PIN-685608.
2.MR.K.RAMACHANDRAN,AGED 67 YEARS,
S/O. KRISHNASWAMY GOWDER, RESIDING AT DOOR NO.77/6,
PANCHAYATH OFFICE STREET,
C.PUTHUPATTI P.O.,
UTHAMAPLAYAM TALUK,THENI DISTRICT,
TAMIL NADU, PIN-625556.
3.SMT.R.AMRUTH,AGED 55 YEARS,
W/O. K.RAMACHANDRAN, RESIDING AT DOOR NO.77/6,
PANCHAYATH OFFICE STREET, C.PUTHUPATTI P.O, UTHAMAPLAYAM TALUK,
THENI DISTRICT,TAMIL NADU,PIN-625556.
BY SENIOR ADVOCATE SRI.S.SREEKUMAR AND
ADVS.M/S.SREEVINAYAKAN K.V., & MUHAMMED HUSSAIN K.M.
P.T.O.
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 6:
1.SUNITHA JAMES,AGED 52 YEARS,D/O.JAMES,
RESIDING AT MALANA HOUSE,NEAR MARIAN RETREAT CENTRE,
ANAKKARA VILLAGE,UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN-685512.
2.STATE OF KERALA,REPRESENTED BY THE SECRETARY,
DEPARTMENT OF REGISTRATION,SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001.
3.THE INSPECTOR GENERAL OF REGISTRATIION,VANCHIYOOR,
THIRUVANANTHAPURAM, PIN-695035.
4.THE DISTRICT REGISTRAR, IDUKKI DISTRICT,
THODUPUZHA P.O, PIN-685608.
5.THE SUB REGISTRAR, KATTAPPANA SUB REGISTRY,
KATTAPPANA, PIN-685508.
6.SMT.G.JAYALAKSHMI, FORMER SUB REGISTRAR,
KATTAPPANA SUB REGISTRY, PIN-685508.
7.THE DISTRICT COLLECTOR, IDUKKI, COLLECTORATE,
KUYILUMALA, PAINAVU, PIN-685602.
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of the Judgment of the learned Single Judge in
W.P.(C)15004/2021 during the pendency of this Writ Appeal in the interest
of justice.
This Writ Appeal coming on for orders on 03/11/2021 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P9:TRUE COPY OF THE APPLICATION DATED 05.07.2020
BEFORE THE INSPECTOR GENERAL OF REGISTRATION.
EXT.P12:TRUE COPY OF ORDER DATED 17.03.2021
PASSED BY THE 3RD RESPONDENT IN INS-2-1001/20.
---
S. MANIKUMAR, C. J. & SHAJI P. CHALY, J.
======================================
W. A. No. 1437 of 2021
======================================
Dated this the 3rd day of November, 2021
ORDER
S. Manikumar, C. J.
Before the writ court, petitioner has sought for the following
reliefs:-
"(i) Issue a writ of mandamus or other appropriate writ,
order or direction commanding the 6th respondent, District
Collector, Idukki, to dispose of Exhibit P10 application, within a
time period fixed by this Hon'ble Court in accordance to law;
(ii) Issue a writ of certiorari or other appropriate writ, order
or direction quashing Ext.P12 order passed by the 3 rd respondent,
District Registrar, Idukki, dismissing Ext.P9 application filed
before the 2nd respondent, Inspector General of Registration, and
further direct the 2nd respondent to consider Ext.P9 application
afresh after obtaining the recommendation of 6 th respondent,
District Collector, Idukki, on Exhibit P10 application."
2. Short facts leading to the filing of the writ petition are as
hereunder:-
According to the petitioner, she is a resident of Muttam,
W. A. 1437 of 2021
Thodupuzha, with her husband, M. M. James, and two female children.
Husband of the petitioner was a practising Advocate of Thodupuzha
Bar. While so, illicit relationship developed between the husband of
the petitioner and the 7th respondent, who is conducting a Beauty
Parlour at Thodupuzha Town. Petitioner thereafter obtained divorce,
and at present, is residing in a rented house. Husband of the petitioner
is now not heard of by the petitioner and her children, or any of his
relatives for the last more than seven years.
Petitioner has contended that the husband of the petitioner and
the 7th respondent were conducting business of Cardamom Processing
during their illicit relationship, and he had indulged in various dubious
financial dealings, and all the properties belonging to him, and also
belonging to the petitioner, were mortgaged with various Banks.
While so, in the year 2012, Mrs. Omana Cyriac, the 7th
respondent, instituted O.S. No. 90 of 2012 before the Sub Court,
Thodupuzha, against M. M. James, and obtained an exparte decree for
realisation of an amount of Rs.97,56,960/-, with interest and costs. The
7th respondent has obtained attachment before judgment, four items of
immovable properties covered under Sale Deed Nos. 1530/2005,
W. A. 1437 of 2021
646/2005, 647/2005 and 1679/1991 of SRO, Kattappana, having
altogether an extent of 6.68 Acres, claiming that the said properties
belong to Mr. M. M. James, the defendant in the suit.
Petitioner has further contended that in fact, out of the total
extent of 6.68 Acres as stated above, Mr. M. M. James had title and
possession only over 1.40 Acres. But, the 7th respondent, by playing
fraud upon the court auctioned, and got delivered altogether 6.68
Acres. 7th respondent has also illegally mutated the abovesaid 6.68
Acres in her favour. The petitioner filed an appeal against the illegal
mutation before the Sub Collector, Devikulam, and the appeal was
allowed directing the Tahsildar (LR), Udumbanchola to conduct a
fresh enquiry and pass orders. Accordingly, the Tahsildar (LR) passed
orders cancelling the mutation earlier effected by the Additional
Tahsildar, Udumbanchola. As the auction sale and subsequent delivery
effected by the Sub Court, Thodupuzha, is vitiated by fraud, the
petitioner has filed application before the Sub Court, to set aside the
sale and delivery, and these applications are pending.
Petitioner has also contended that the Tahsildar (LR),
Udumbanchola, has issued a copy of his order, cancelling the mutation
W. A. 1437 of 2021
to the Sub Registrar, Kattappana, intimating that no deed shall be
registered involving the properties mentioned in sale deed
No.1530/2005, 646/2005 and 647/2005, as these deeds are forged and
fabricated documents. Inspite of receipt of the said order, the then Sub
Registrar, Kattappana, registered a sale agreement executed by the 7 th
respondent, in favour of respondents 8 and 9.
Therefore, the petitioner submitted application for cancellation
of registration before the District Collector, Idukki, and the Inspector
General of Registration, under the provisions of the Registration Act,
1908. The main complaint raised in these applications before the
statutory authority, is that 3.08 Government land is included in the sale
agreement. Ext. P10 application submitted before the District Collector
is still pending. Ext. P9 application filed before the Inspector General
of Registration has been illegally rejected by the District Registrar,
Idukki. Being aggrieved, W. P. (C) No. 15004 of 2021 has been filed.
3. Mrs. Omana Cyriac, though impleaded as respondent No. 7,
has not been served, however, considering the reliefs sought for, after
hearing the learned counsel for the writ petitioner, as well as the
Special Government Pleader, writ court, by judgment dated 15.09.2021
W. A. 1437 of 2021
in W. P. (C) No. 15004 of 2021, has passed the following order:-
"6. Sri.Hanil Kumar, learned Special Government Pleader,
submitted that the question whether Ext.P7 agreement covers the
properties owned by the Government is an issue which will
require to be assessed and verified based on relevant inputs and
applicable documents. He submitted that, therefore, this Court
may permit the 6th respondent-District Collector to consider
Ext.P10 application of the petitioner and if the said Authorities is
to find any substance in his allegations, he can make suitable
recommendations to the 2nd respondent-Inspector General of
Registration, for cancellation of Ext.P7-agreement. He prayed
that this writ petition be ordered on such terms.
7. When I hear the learned Senior Government Pleader as
afore, it is without doubt that the only course available to this
Court will be to either direct the 2nd respondent-Inspector General
of Registration to take a suo motu action or to direct the 6th
respondent-District Collector, to consider Ext.P10 and make
suitable recommendations to the former appropriately.
8. Even though, I see that notices from this Court have not
been yet served on the party respondents, I do not think that it
will inhibit me from disposing of this writ petition, because the
directions that I propose herein will not cause any prejudice to
them.
In the afore circumstances and taking note of the
submissions of the learned Special Government Pleader, I allow
W. A. 1437 of 2021
this writ petition to the limited extent of directing the 6 th
respondent to suitably notify respondents 7 to 9 and then take up
Ext.P10 application and dispose it of, after hearing the petitioner
as well as the said respondents; thus culminating in an
appropriate order thereon, as expeditiously as is possible but not
later than two months from the date of receipt of a copy of this
judgment.
I make it reiteratingly clear that since this Court has
disposed of this writ petition even before service of notices to the
party respondents have been completed, the 6th respondent will
complete the afore exercise only after hearing the party
respondents and after assessing their contentions specifically.
Needless to say, in view of my directions above, all actions
which have been taken pursuant to Ext.P12 order of the District
Registrar, Idukki, will cease, since I am of the prima facie view
that said Authority had no competence to issue the same order,
even under the directions of the 2nd respondent-Inspector General
of Registration, since it is either the said Authority or the District
Collector, who is competent to take necessary action in law."
4. Being aggrieved, instant writ appeal is filed.
5. One of the prayers sought for in the writ petition is to quash
Ext. P12 order passed by the District Registrar, Idukki, respondent No.
3, dismissing Ext. P9 application filed before the Inspector General of
Registration, respondent No. 2.
W. A. 1437 of 2021
6. Ext. P12 is an order passed by the District Registrar, Idukki,
on the petition submitted by Smt. Sunitha James / writ petitioner.
7. Going through the impugned judgment, we find that the
learned Judge has declared that Ext. P12 will cease to have effect.
Such declaration has been granted even without hearing the appellant,
arrayed as respondent No. 7.
8. Giving due consideration to the pleadings and material on
record, we are of the view that the instant writ appeal requires to be
admitted, and accordingly admitted.
There shall be an interim stay of the impugned judgment in W. P.
(C) No. 15004 of 2021 dated 15.09.2021.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
03-11-2021 /True Copy/ Assistant Registrar
