Kuttan Pillai @ Kochu Kuttan Pilla vs P.G.Vasudevan Nair
2022 Latest Caselaw 9871 Ker

           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 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
                      WA NO. 465 OF 2022
 AGAINST THE JUDGMENT IN WP(C) 9183/2021 OF HIGH COURT OF
                    KERALA DATED     28.9.2021
APPELLANT/8th RESPONDENT:

           KUTTAN PILLAI @ KOCHU KUTTAN PILLA,
           S/O. SHANKARA PILLAI, KARAYMA HOUSE,
           PULIYOOR VILLAGE, CHENGANNUR TALUK - 689126.

           BY ADVS.
           GEORGE CHERIAN (SR)
           K.S.SANTHI
           LATHA SUSAN CHERIAN
RESPONDENTS/PETITIONER & RESPONDENTS 1-7:

    1      P.G.VASUDEVAN NAIR
           S/O. LATE GOPALAN PILLAI,
           RESIDING AT KARAZHMAYIL HOUSE,
           PERISSERY P.O, CHENGANNUR - 689126,
           ALAPPUZHA DISTRICT.

    2      STATE OF KERALA,
           REPRESENTED BY ITS PRINCIPAL SECRETARY TO
           REVENUE DEPARTMENT,
           GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM - 695001.

    3      LAND REVENUE COMMISSIONERATE,
           REVENUE COMPLEX,
           PUBLIC OFFICE COMPOUND,
           MUSEUM JUNCTION,
           THIRUVANANTHAPURAM - 695036.

    4      DISTRICT COLLECTOR,
           COLLECTORATE, ALAPPUZHA - 688001.

    5      REVENUE DIVISIONAL OFFICER,
           OFFICE OF THE RDO, CHENGANNUR - 689121.
   W.A.465/2022
                             2

   6       ADDITIONAL TAHSILDAR,
           TALUK OFFICE, CHENGANNUR - 689121.

   7       THE DEPUTY DIRECTOR,
           OFFICE OF THE DIRECTOR OF SURVEY,
           ALAPPUZHA - 688011.

   8       THE VILLAGE OFFICER,
           VILLAGE OFFICE,
           PULIYOOR - 689510.

           BY ADVS.
           R.KRISHNA RAJ
           SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER
           E.S.SONI
           KUMARI SANGEETHA S.NAIR
           R.PRATHEESH (ARANMULA)
           RESMI A.

     THIS WRIT    APPEAL   HAVING BEEN FINALLY HEARD ON
22.8.2022, THE     COURT   ON   31.08.2022 DELIVERED THE
FOLLOWING:
    W.A.465/2022
                                     3




                            JUDGMENT

Shaji P. Chaly, J

The captioned appeal is filed by the 8th respondent, being

aggrieved by the Judgment of the learned Single Judge in W. P.

(C) No. 9183 of 2021, dated 28.9.2021, whereby the writ petition

was allowed and the following reliefs sought for was granted:

"i. Issue a Writ of Certiorari or any appropriate Writ order or direction call for the records pertaining to Ext P11 and quash the same.

ii. Issue a Writ of Mandamus or any appropriate writ, order or direction directing the 1 st respondent to reconsider Ext P10 application after affording opportunity of hearing to the petitioner

iii. Issue a Writ in the nature of declaration to declare that Ext P3 order passed by the 5th respondent is not sustainable.

(iv) Issue a writ of certiorari and call for the records pertaining to Ext P3, P8 and P9 and quash the same."

2. Short facts leading to filing of the writ petition are as

under:

2.1. Petitioner is aggrieved by Exhibit P3 order passed by W.A.465/2022

the 5th respondent cancelling the mutation effected as per

Exhibit P2 and also the subsequent orders passed by the 2 nd and

3rd respondents vide Exhibits P9 and P8, respectively, in favour of

the 8th respondent. It is seen from Exhibit P5 legal opinion that

the beneficiaries of Exhibit P1 mortgage deed had been under

exclusive physical possession of the property since 1117 ME. So

far, the mortgagor has not initiated any legal steps for recovery

of possession of said property within the time period stipulated

under the Limitation Act, 1963. Hence, the title acquired by the

beneficiaries had become absolute, even otherwise by virtue of

title by adverse possession. There are no legal impediments or

bar for causing mutation over the properties covered by Exhibit

P1 Mortgage Deed. The cancellation of mutation granted as per

Exhibit P2 is a procedural violation as the order passed by the

Additional Tahsildar can only be cancelled by the District

Collector.

2.2. In the case on hand, an order passed by an Additional

Tahsildar was cancelled by another Additional Tahsildar, who was

the successor. Though Exhibit P10 representation was considered

by the 1st respondent, no opportunity of hearing was granted to W.A.465/2022

the petitioner, and passed Exhibit P11 order. The specific claim of

the 8th respondent is that his Father who executed the mortgage

deed in favour of the beneficiaries after repayment of the

Mortgage money released the mortgage within one year of the

execution of Exhibit P1, but such contention seems to be in

contradiction, which is evident from Exhibit P14 application

submitted before the Land Tribunal with prayer to assign the

property in question in favour of the 8th respondent and his

mother. In Exhibit P14, it is stated that the mortgage deed is in

force and the 1st applicant who is none other than the Mother of

the 8th Respondent is the beneficiary. Thus, the claim of the 8 th

respondent that the mortgage was released by his Father is an

incorrect statement. The cancellation of Exhibit P2 proceedings

by Exhibit P3 and the subsequent orders passed by the Higher

Authorities are bad in law and the same had been passed without

considering the legality of the issues. It was in the said

background seeking reconsideration of the entire issues by

setting aside Exhibits P3, P8 and P9 the writ Petition was filed.

3. After considering the rival submissions, the writ court

passed the following order :

W.A.465/2022

"9. That said, however, even if the original Transfer of property in favour of the petitioner was wrong and even if it is assumed that it goes contrary to the Transfer of Registry Rules, the relevant question is whether the Tahsildar himself could have issued an order like Ext.P3. This has not been specifically dealt with in any of Exts.P8, P9 or P11 orders; but, interestingly, it is whisperingly stated therein that such a course, normally, could not have been adopted. If that be so, certainly, there were other methods for cancelling Ext.P2 - order of Transfer of Registry and therefore, unless this issue is properly considered, the petitioner's technical objection against Ext.P3 will remain to have some force in law.

I am, therefore, of the firm view that the matter will require to be reconsidered by the District Collector, who is the Appellate Authority and that for such purpose, Exts.P8, P9 and P11 will deserve to be set aside. I, however, hasten to add that I am not affirmatively finding in favour of the petitioner at all, but am only saying that even if Ext.P2 had to be cancelled, it had to be done in a manner known to law and not by an exercise of power which was not available to an Authority, as per the provisions of the applicable Rules and Regulations.

In the afore circumstances, I allow this writ petition and set aside Exts.P8, P9 and P11; with a consequential direction to the 3rd respondent - District Collector to reconsider the appeal of the petitioner - which had earlier lead to Ext.P8 - after affording him, as also the 8 th respondent, an opportunity of being heard; 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 W.A.465/2022

copy of this judgment.

I reiteratingly make it clear that I have not considered the merits of the rival contentions of the parties and that they are all left open to be pursued by them appropriately before the District Collector and for the said Authority to consider them in terms of law, including as to the manner in which Ext.P2 will require to be cancelled, if it is found so warranted, under the applicable Rules and Regulations."

4. It is thus challenging the legality and correctness of the

judgment of learned Single Judge appeal is preferred, basically

contending that the reasoning of the learned Single Judge is

against law, facts and evidence in the case. That apart, it is

contended that having found that objection to Exhibit P3 is only

technical, went wrong in quashing Exhibit P3 and P9 orders

passed by the appellate and revisional authority, after hearing

the parties. It is further contended that Exhibit P2 proceedings

of the Additional Tahsildar, Chengannur dated 7.3.2011 directing

the changes done in the FM Sketch Form No.7 in regard to the

property situated in Survey No.23/11, Block No.9 in Puliyoor

Village, Chengannur taluk and the same changes, ordered to be

made in the respective village records cannot be sustained in

view of the bar under Section 14 (5) of the Transfer of Registry W.A.465/2022

Rules. Other contentions are also raised.

5. We have heard learned Senior Counsel for the appellant

Sri. George Cherian assisted by Smt. Latha Susan Cherian, Sri. R.

Krishna Raj, learned counsel for the 1st respondent and Sri. V.

Tekchand, learned Senior Government Pleader for respondents 2

to 8 and perused the pleadings and material on record.

6. In fact, the learned Single Judge has proceeded on the

basis that the Tahsildar did not have power to revise the original

order of Transfer of Registry in accordance with the provisions of

Transfer of Registry Rules, 1966. In fact, in Exhibit P8, P9 and P11

orders passed by the Appellate and Revisional Authorities, it is

made clear that the action of the Tahsildar reviewing its own

earlier order is not in accordance with law, but the said

authorities proceeded on the basis that since the original

Transfer of Registry in favour of the petitioner was illegal; on

account of the provisions of rule 14(5) of the Transfer of Registry

Rules, illegality could be rectified or condoned, through the said

orders.

7. The learned Single Judge has found that such procedure

adopted by the appellant as well as Revisional Authorities cannot W.A.465/2022

be sustained under law, basically for the reason that the primary

order passed by the Tahsildar revising the original order of

Transfer of Registry itself was illegal since there was no power

vested with the Tahsildar under the provisions of Transfer of

Registry Rules to do so. Therefore, when the foundational order

itself was illegal and arbitrary, and having found so by the higher

authorities, it was not legal and proper on the part of the

appellate and Revisional Authorities to exercise the power

conferred under Rule 14 (5) of the Rules 1966 and revalidate the

order passed by the primary authority. Though sub-rule (5) of

rule 14 specifies that no conditional or temporary transfer of

registry in the names of mortgagee, lessees etc. shall be ordered,

we do not think that can be corrected by the same authority by

revising the original order passed by it, when it had no power to

do so.

8. In our view, if the appellant was aggrieved by the original

order of the Tahsildar transferring registry, the remedy available

to the appellant was to prefer an appeal against that order and

not to seek a review before the Tahsildar, for which there is no

provision under the rules. Rule 18 of the Transfer of Registry W.A.465/2022

Rules 1966 deals with appeal from an order passed by the

primary authority. It also makes it clear that from an order

passed by the Tahsildar, an appeal shall lie to the Revenue

Divisional Officer within a period of 30 days from the date of

receipt of the order, with a power to the Appellate Authority to

admit an appeal after the expiry of the prescribed period of 30

days, if he is satisfied that appellant has good and sufficient case

for not preferring the appeal within that period.

9. It is equally important to note that sub rule (iv) of Rule

18 makes it clear that it shall be open to the District Collector, if

he is satisfied that sufficient grounds exist to revise, cancel or

alter on his own motion or otherwise, any decision or order

passed by the Revenue Inspector, Deputy Tahsildar, Tahsildar or

the Revenue Divisional Officer, within a period of five years from

the date of such decision (One year period is substituted with

five years on and w.e.f. 10.8.1984). However, no revision shall be

entertained by the District Collector unless the parties have

exercised the right of appeal, prescribed under the rules and no

order in revision interfering with the original order shall be

passed without providing, a reasonable opportunity of being W.A.465/2022

heard.

10. Therefore, on an analysis of the provisions of Rule 18, it

is categoric and clear that the appellate power conferred on the

statutory authority is a full fledged one, to ventilate the

grievances of any aggrieved person.

11. That being the situation and having realised the

inherent illegality in the order passed by the primary authority,

the stand adopted by the appellate and revisional authority

considering the matter on merit, unmindful of the foundational

illegality in the order passed by the Additional Tahsildar, revising

the original order passed by another Tahsildar cannot be

sustained under law.

12. Viewed so, we have no hesitation to say that the

learned Single Judge was right in setting aside the orders, and

directing to reconsider the appeal preferred by the writ

petitioner before the District Collector, exercising the powers

conferred under Article 226 of the Constitution of India.

Needless to say, the appeal has no sustenance, there being no

jurisdictional error or other legal infirmities in the Judgment of

the learned Single Judge justifying us to interfere in an intra W.A.465/2022

court appeal, and accordingly, it is dismissed.

Sd/-

S. Manikumar, Chief Justice

Sd/-

Shaji P. Chaly, Judge sou.

   W.A.465/2022


                 APPENDIX OF WA 465/2022

RESPONDENT'S ANNEXURES

ANNEXURE R4(A)    PROCEEDINGS   OF  THE    4TH  RESPONDENT
                  DATED,    28.02.2022     WITH    ENGLISH
                  TRANSLATION