Maheswari vs Tahsildar
2022 Latest Caselaw 333 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                      WP(C) NO. 10931 OF 2020
PETITIONER:

          VARGHESE
          AGED 69 YEARS
          S/O DEVASSY, MELEDATHU PARAMBIL HOUSE, NEAR REST
          HOUSE, IRINJALAKUDA, THRISSUR DISTRICT-680 121.

          BY ADV G.SREEKUMAR (CHELUR)



RESPONDENTS:

    1     THE STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL
          SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM DISTRICT-695 001.

    2     THE IRINJALAKUDA MUNICIPALITY,
          REPRESENTED BY ITS SECRETARY, IRINJALAKUDA
          P.O.THRISSUR DISTRICT-680 121.

    3     MAHESWARI,
          AGED 56 YEARS
          W/O SIVARAMAN, DESATH MELITTAVEETIL HOUSE,
          IRINJALAKUDA P.O., THRISSUR DISTRICT-680 121.

    4     SREEJA SURESH,
          W/O SURESH , COUNCILOR, WARD NO 24, IRINJALAKUDA
          P.O., THRISSUR DISTRICT-680 121.

          BY ADVS.
          SRI.K.K.CHANDRAN PILLAI (SR.)
          SRI.V.M.KRISHNAKUMAR
          SMT.S.AMBILY, SC, IRINJALAKUDA MUNICIPALITY


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.01.2022, ALONG WITH WP(C).542/2021 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.10931/2020 & Con. Cases
                              2

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                    WP(C) NO. 542 OF 2021
PETITIONER:

         MAHESWARI
         AGED 56 YEARS
         W/O. SIVARAMAN, MELITTAVEETIL HOUSE, IRINJALAKUDA
         P.O, THRISSUR DISTRICT, PIN-680 121

         BY ADV V.M.KRISHNAKUMAR



RESPONDENT/S:

   1*     TAHSILDAR
          TALUK OFFICE, MUKUNDAPURAM TALUK, IRINJALAKUDA P.O,
          THRISSUR DIST, PIN-680 121. *(SOU MOTU CORRECTED)

          * CORRECTED ADDRESS OF 1ST RESPONDENT
          TAHSILDAR (LR), TALUK OFFICE, MUKUNDAPURAM TALUK,
          IRINJALAKUDA P.O., THRISSUR DISTRICT, PIN-680 121.

          ADDRESS OF 1ST RESPONDENT SUOMOTU CORRECTED AS PER
          THE ORDER DATED 08.01.2021 IN WP(C) 542/2021.

    2     THE VILLAGE OFFICER,
          IRINJALAKUDA VILLAGE OFFICE, IRINJALAKUDA P.O,
          THRISSUR DISTRICT, PIN-680 121

    3     VARGHESE,
          S/O. DEVASSY, MELEDATH PARAMBIL HOUSE, NEAR REST
          HOUSE, IRINJALAKUDA P.O, THRISSUR DISTRICT,
          PIN-680 121

         BY ADVS.
         GOVERNMENT PLEADER
         SRI.G.SREEKUMAR (CHELUR)



OTHER PRESENT:
 WP(C) NO.10931/2020 & Con. Cases
                              3


          GP RESHMI THOMAS., SC S. AMBILY., SR ADV RANJITH
          THAMBAN


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.01.2022, ALONG WITH WP(C).2873/2021, 10931/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.10931/2020 & Con. Cases
                               4



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                   WP(C) NO. 2873 OF 2021
PETITIONER:

         MAHESWARI
         AGED 56 YEARS
         W/O. SIVARAMAN, MELITTAVEETIL HOUSE, IRINJALAKUDA
         P.O., THRISSUR DISTRICT-680121.

         BY ADV V.M.KRISHNAKUMAR



RESPONDENTS:

    1     TAHSILDAR,
          TALUK OFFICE, MUKUNGAPURAM TALUK, IRINJALAKUDA
          P.O., THRISSUR DISTRICT-680121.

    2     THE VILLAGE OFFICER,
          IRINJALAKUDA VILLAGE OFFICE, IRINJALAKUDA P.O.,
          THRISSUR DISTRICT-680121.

    3     VARGHESE,
          S/O. DEVASSY, MELEDATH PARAMBIL HOUSE, NEAR REST
          HOUSE, IRINJALAKUDA P.O., THRISSUR DISTRICT-680121.

         BY ADV SRI.G.SREEKUMAR (CHELUR)

         GP RESHMI THOMAS


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.01.2022, ALONG WITH WP(C).542/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.10931/2020 & Con. Cases
                                         5


                                   JUDGMENT

I am considering these three matters together

and am disposing of them jointly, since the factual

factors involved are analogous and the reliefs

sought for therein are interdependent - which is to

say that grant of reliefs in one, will have an

indelible effect on the grant of reliefs in the

others.

2. W.P.(C).Nos.542 of 2021 and 2873 of 2021

have been filed by Smt.Maheswari; while W.P.

(C).No.10931 of 2020 has been filed by Sri.Varghese.

3. For the sake of convenience, I will refer to

the parties by their names hereinafter.

4. It is the case of Smt.Maheswari that her

late husband had sold a building standing in the

property which now belongs to her, to Sri.Varghese,

without any undivided share being offered on it to

him. She says that, therefore, there was no question

of Sri.Varghese being allowed to remit land tax on

any part of the property, or to seek transfer of WP(C) NO.10931/2020 & Con. Cases

Registry of the same in his favour; but that, making

several misrepresentations, he managed to obtain

Ext.P4 order in W.P.(C).No.2873 of 2021, whereby,

even without hearing her, the Tahsildar (Land

Records) entered into a conclusion that, under the

sale deed between the parties, undivided rights over

the property had also been assigned in favour of

Sri.Varghese.

5. Smt.Maheswari asserts that Ext.P4 order in

W.P.(C).No.2873 of 2021 is egregiously improper

because the same Authority had, a couple of days

earlier, issued Ext.P3 therein recording to the

contrary; and that, consequent to the impugned

order, an attempt was made by Sri.Varghese to obtain

transfer of Registry of the property of the

"undivided share" in the property in his favour,

which has constrained her to file W.P.(C).No.542 of

2021, seeking a direction to respondents 1 and 2

therein, not to accede to the same without hearing

her.

6. That being so, it transpires that WP(C) NO.10931/2020 & Con. Cases

Sri.Varghese obtained a building permit from the

Irinjalakuda Muncipality, on the assertion that he

is entitled to make a construction in the building

and the property under it, so as to provide a septic

tank, since he has undivided rights over the same.

It appears that the Municipality accepted his

version and issued a building permit, on the

strength of which, he made an excavation in the

building to the extent of six feet, so as to install

the tank, but that on account of the objections

raised by Smt.Maheswari, an enquiry was conducted

and the Secretary of the Municipality issued an

order canceling the building permit, which order has

been assailed by Sri.Varghese in W.P.(C).No.10931 of

2020, producing it as Ext.P8.

7. I have heard Sri.Renjith Thampan, learned

Senior Counsel, instructed by Sri.V.M.Krishnakumar -

learned counsel for Smt.Maheswari; Sri.Sreekumar

Chelur - learned counsel for Sri.Varghese;

Smt.S.Ambily - learned Standing Counsel for the

Irinjalakuda Municipality; and Smt.Reshmi Thomas - WP(C) NO.10931/2020 & Con. Cases

learned Government Pleader appearing for the

official respondents in all three cases.

8. As is perspicuous from the afore narration

of facts, there are two broad issues involved in

these cases, namely:

(a) Whether Sri.Varghese has obtained any

undivided right over the land on which the building

is situated, through the sale deed executed in his

favour by the husband of Smt.Maheswari;

b) Whether the action of the Irinjalakuda

Municipalility in having cancelled the building

permit of Sri.Varghese is in error.

9. As I have already noticed above, it is the

specific case of Smt.Maheswari that her husband had

assigned only the building to Sri.Varghese, without

any undivided right being reserved in his favour,

over the land under it; and therefore, that neither

can he seek transfer of Registry of any portion

thereof in his favour, nor make any construction by

digging into the land in question.

10. That having been said, the Irinjalakuda WP(C) NO.10931/2020 & Con. Cases

Municipality in Ext.P8 in W.P.(C).No.10931 of 2020

says that the building permit issued to Sri.Varghese

was under a mistaken notion, on account of his

misrepresentation, because the same had been issued

without him producing either the tax receipt with

respect to the land in question or the documents to

show that he had any right over it, and even before

he had obtained transfer of its Registry in his

favour. The order also says that production of the

possession certificate, over the land in question,

which is a mandatory requirement under the

applicable Building Rules, had also not been done by

Sri.Varghese.

11. It is thus apodictic, that the primary

question for this Court to consider is whether

Sri.Vargehse has any right over the land in question

- be that undivided or otherwise. It is only if he

is able to establish that he has such right, can the

question of his making a request for transfer of

Registry of the same in his name and to consequently

obtain a possession certificate and tax receipt on WP(C) NO.10931/2020 & Con. Cases

it become relevant.

12. However, going by Ext.P4 proceedings of

the Tahsildar in W.P(C)No.2873 of 2021, he has

entered into an opinion without hearing any of the

parties and without examining any document to

establish that Shri.Varghese obtains undivided

share over the property in question. One certainly

fails to understand how this conclusion was

arrived at, particularly when Smt.Maheswari was,

concededly, not given an opportunity of being

heard.

13. Therefore, the opinion of the Tahsildar,

that Shri.Varghese has obtained an undivided share

over the land, cannot obtain my imprimatur at this

time, especially because, based on the said order,

Shri.Varghese is now attempting to obtain transfer

of Registry in his favour, so as to validate the

building permit which he had already obtained from

the Irinjalakkuda Municipality.

14. In such perspective, the submissions of

Smt.S.Ambily, learned Standing Counsel for the WP(C) NO.10931/2020 & Con. Cases

Irinjalakkuda Municipality, gathers some force

because she says that the building permit in

question was issued to Shri.Varghese under a

misrepresentation made by him that he has

undivided share over the land in question and that

he is thus entitled to construct a septic tank by

digging under the building in question. Since this

issue itself is at large, being still properly not

decided, I cannot blame the Municipality in having

issued Ext.P8 order in W.P(C)No.10931 of 2020.

15. It is needless to say that only if

Shri.Varghese is able to cogently establish

undivided rights over the property, can he

maintain the building permit in his favour and

seek transfer of Registry of the said undivided

share in his favour, as also for permission to

remit land tax thereon.

16. The law in this regard is well settled by

various judgments of this Court, including in

Korah M.P (Dr.) and Others v. Dr.Mrs.Rachel WP(C) NO.10931/2020 & Con. Cases

Zacharia alias Rahel and Others [2018 (1) KHC 365]

and Sunil v. Additional Thahasildar, Kollam and

Others [2019 (2) KHC 889], that a transfer of

Registry of an undivided share of land can be

effected only after hearing all the joint owners,

or at least after giving them an opportunity of

being heard.

17. In the case at hand, as I have already

said above, Ext.P4 proceedings in W.P(C)No.2873 of

2021 have been settled by the Tahsildar - finding

undivided share in favour of Shri.Varghese over

the land in question - without hearing or

affording an opportunity of being heard to

Smt.Maheswari. Obviously, therefore, Ext.P4 cannot

find my favour, particularly because, in Ext.P3 in

the same writ petition, which was settled by the

same Authority a couple of days earlier, he

appears to have found to the contrary.

18. Resultantly, I am certain that the entire

matter will require to be reconsidered, for which WP(C) NO.10931/2020 & Con. Cases

purpose, I issue the following directions:

(a) W.P(C)No.2873 of 2021 is ordered and

Ext.P4 is set aside; with a resultant direction to

the Tahsildar to hear both sides and examine all

the relevant documents, including the Sale Deed

claimed by Shri.Varghese, and then finally take a

decision as to whether he obtains any undivided

right over the land in question. This shall be

done by the Tahsildar as expeditiously as is

possible, but not later than three months from the

date of receipt of a copy of this judgment.

(b) W.P(C)No.542 of 2021 is disposed of

without any further orders, in view of the afore

directions.

(c) W.P(C)No.10931 of 2020 is disposed of,

leaving liberty to the petitioner to approach the

competent Authority of the Irinjalakkuda

Municipality, subject to the decision to be taken

by the Tahsildar in terms of my directions in (a)

above. If the Tahsildar is to find in favour of WP(C) NO.10931/2020 & Con. Cases

Shri.Varghese that he holds undivided right over

the land in question, he will certainly be

entitled to move the competent Authority of the

Municipality and seek that his building permit be

ratified; which shall then be done by the said

Authority, after hearing Smt.Maheswari also.

(d) Until such time as the Tahsildar takes a

decision as above and Shri.Varghese thereafter

approaches the Municipality, Ext.P8 in

W.P(C)No.10931 of 2020 will continue to be in

force; which will, however, be amenable to

modification by the competent Authority as ordered

above, subject to the decision to be taken by the

Tahsildar, in which event alone, Shri.Varghese

will be entitled to continue with the construction

or to use the septic tank, which he has presently

attempted to construct.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/13.1 WP(C) NO.10931/2020 & Con. Cases

APPENDIX OF WP(C) 10931/2020

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE PHOTOGRAPH TAKEN BY THE PETITIONER

EXHIBIT P2 A TRUE COPY OF THE DOCUMENT BEARING NO 3167 OF 5 DATED 23.12.05 OF THE IRINJALAKUDA S.R.O

EXHIBIT P3 A TRUE COPY OF THE BUILDING PERMIT GRANTED BY THE SECOND RESPONDENT DATED 2.11.18

EXHIBIT P4 A TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 4.5.19

EXHIBIT P5 A TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER THROUGH HIS LAWYER DATED 4.2.19

EXHIBIT P6 A TRUE COPY OF THE PLAINT IN OS NO 614 OF 19 DATED 1.6.19 ON THE FILE OF THE MUNSIFF COURT, IRINJALAKUDA.

EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DELIVERED IN WPC NO 33943 OF 2019 DATED 16.1.2020

EXHIBIT P8 A TRUE COPY OF THE ORDER PASSED DATED 5.3.2020

EXHIBIT P9 A TRUE COPY OF THE RECEIPT NOTICE ISSUED U/S 406 (1) OF THE KERALA MUNICIPALITY ACT 1994.

EXHIBIT P10 A TRUE COPY OF THE THANDAPER ACCOUNT DATED 8.9.2020`

EXHIBIT P11 A TRUE COPY OF THE RECEIPT DATED 8.9.2020

EXHIBIT P12 A TRUE COPY OF THE COMMUNICATION OF THE MUNICIPALITY DATED 29.8.2019.

WP(C) NO.10931/2020 & Con. Cases

APPENDIX OF WP(C) 542/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 3167/2005 DATED 23.12.2005.

EXHIBIT P1 A TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE PETITIONER DATED 22.05.2018.

EXHIBIT P2 TRUE COPY OF THE ORDER OF THE IRINJALAKUDA MUNICIPALITY DATED 05.03.2020.

EXHIBIT P3 TRUE OF THE LETTER DATED 10.06.2018 OF THE TAHSILDAR.

EXHIBIT P4 TRUE COPY OF THE REPRESNTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 22.12.2020.

RESPONDENT EXHIBITS

ANNEXURE R1(a) THE TRUE COPY OF THE ORDER NO.4916/20 DATED 7.7.2020.

WP(C) NO.10931/2020 & Con. Cases

APPENDIX OF WP(C) 2873/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.3167/2005 DATED 23/12/2005.

EXHIBIT P1(A) TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE PETITIONER DATED 22/05/2018.

EXHIBIT P2 TRUE COPY OF THE ORDER OF THE IRINJALAKUDA MUNICIPALITY DATED 05/03/2020.

EXHIBIT P3 TRUE COPY OF THE LETTER DATED 10/05/2019 OF THE TAHSILDAR.

EXHIBIT P4 TRUE COPY OF LETTER OF THE 1ST RESPONDENT DATED 07/07/2020.

EXHIBIT P5 TRUE COPY OF THE FORM NO.1 APPLICATION UNDER RULE 13 OF TRANSFER OF REGISTRY RULES.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT IN 22/12/2020.