Smt. E.G.Kunjulekshmi Amma vs The District Collector
2022 Latest Caselaw 570 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     FRIDAY, THE 14TH DAY OF JANUARY 2022 / 24TH POUSHA, 1943
                       WP(C) NO. 24540 OF 2021
PETITIONER:

          SMT. E.G.KUNJULEKSHMI AMMA
          AGED 86 YEARS
          W/O. RAGHAVAN PILLA, AMBADI,
          PULIMATH P.O., KILIMANOOR,
          THIRUVANANTHAPURAM.

          BY ADVS.
          N.D.PREMACHANDRAN
          D.AJITHKUMAR



RESPONDENTS:

    1     THE DISTRICT COLLECTOR,
          COLLECTORATE, KOLLAM 691 013.

    2     THE REVENUE DIVISIONAL OFFICER,
          VALACODE P.O., PUNALUR 691 331.

    3     THE TAHSILDAR,
          BOOREKHA, PATHANAPURAM 689 695, KOLLAM.

    4     THE VILLAGE OFFICER,
          VILAKUDI VILLAGE, VILAKUDI,
          PATHANAPURAM, KOLLAM 691 322.

    5     ANASARI M.S.,
          S/O. SHAHUL HAMEED,
          MEEPURATH VEETTIL,
          VETTIPARA P.O.,
          PATHANAMTHITTA 691 508.

          BY ADVS.
          GOVERNMENT PLEADER
          V.K.PEERMOHAMED KHAN
          P.H.SHAJAHAN



OTHER PRESENT:
 WP(C) NO. 24540 OF 2021

                                   2

             SMT. MABLE .C .KURIAN SR.G.P




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   14.01.2022,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 24540 OF 2021

                              3

                          JUDGMENT

The petitioner says that she had purchased the

property involved in this case in a Court Auction conducted

by the Recovery Officer, attached to the Debts Recovery

Tribunal (DRT), Ernakulam, under the provisions of the

Recovery of Debts Due to Banks and Financial Institutions

Act, 1993 (hereinafter referred to as the " DRT Act" for

short").

2. The petitioner says that even though Ext.P1 Sale

Certificate, executed in her favour by the Recovery Officer

of the DRT, has been validly registered by the jurisdictional

Sub Registrar without demur, when she applied for

transfer of Registry of the property in her favour, so as to

allow her to remit land tax thereon, it has been refused to

be acceded to by the 3rd respondent - Tahsildar and the 4th

respondent - Village Officer, saying that 5th respondent has

made a claim over the property in question. She contends WP(C) NO. 24540 OF 2021

that such refusal is illegal and unlawful because the 5 th

respondent, admittedly, is the purchaser of a portion of

the extent involved from the original owner, much after

the mortgage was executed by the latter in favour of the

Bank; and more since his claims have already been

rejected by the Recovery Officer. She, therefore, prays

that respondents 3 and 4 be directed to effect transfer of

Registry of the property covered by Ext.P1 Sale Certificate

in her favour and to allow to remit land tax thereon,

without any further delay.

3. The afore submissions of Sri. N. D.

Premachandran - learned counsel for the petitioner, were

vehemently opposed by Sri.Peer Muhammed Khan -

learned counsel appearing for respondent No.5, saying

that his client is only claiming an extent of 10 cents, out of

the total of 186.25 cents covered by Ext.P1 Sale

Certificate. He submitted that his client's predecessor-in-

interest had bonafidely his purchased this extent without WP(C) NO. 24540 OF 2021

being aware of the mortgage and that he has, therefore,

now approached the DRT against the order of the

Recovery Officer, seeking that the sale with respect to the

said extent be set aside, on various grounds, including the

violation of the mandatory procedural requirements under

the "DRT Act". He, therefore, prayed that this writ petition

be dismissed.

4. Smt.Mable C. Kurian-learned Senior Government

Pleader, submitted that respondents 3 and 4 have been

incapacitated from acceding to the requests of the

petitioner because it was noticed that certain proceedings

with respect to the property in question is pending before

the DRT. She submitted that, however, if this Court is so

inclined, the 3rd respondent - Tahsildar and the 4 th

respondent - Village Officer, can take necessary action for

transfer of Registry of the property and for permitting the

petitioner to remit land tax thereon, as per law, provided

all other statutory requirements and contentions are WP(C) NO. 24540 OF 2021

satisfied.

5. When I evaluate the afore submissions, it is

without doubt that, even as per the 5 th respondent, his

predecessor-in-interest had purchased the property

covered by Ext.P1 Sale Certificate after the original owner

had created the mortgage in favour of the Canara Bank.

Obviously, therefore, any such sale will be subject to the

mortgage in favour of the Bank and it cannot, in any

manner, impede the rights of the said Bank to have the

property brought to sale under the process of law, which

they have done and culminated in Ext.P1 Sale Certificate.

6. Further, since 1st respondent is claiming only 10

cents out of the extent of property covered by Ext.P1, I

fail to understand how respondents 3 and 4 could have

refused permission to the petitioner to have the transfer of

its Registry in her favour or to remit land tax thereon.

7. This is more so because the 5th respondent WP(C) NO. 24540 OF 2021

concedes that his challenge against the sale conducted by

the Recovery Officer has been dismissed by the said

Authority, and that an appeal is pending against it before

the DRT. Obviously, therefore, if that appeal is allowed

and the sale to the extent of 10 cents set aside, all

necessary consequences will follow as far as the petitioner

is also concerned, subject to her available remedies.

However, this will not inhibit respondents 3 and 4 from

acting as per the request of the petitioner in terms of law.

Resultantly, I order this writ petition, with a

consequential direction to respondent No.3 to immediately

accede to the request of the petitioner for transfer of

Registry of the property, covered by Ext.P1, in her favour,

subject to all other requirements in law being satisfied;

pursuant to which, the Village Officer will permit her to

remit land tax thereon, without any avoidable delay

thereafter.

WP(C) NO. 24540 OF 2021

The 3rd respondent - Tahsildar will complete the

proceedings as ordered above within a period of two

weeks from the date of receipt of a copy of this judgment.

Needless to say, this Court has not dealt with the

contentions of the 5th respondent, or about the appeal -

which he says pending before the DRT - on its merits and

axiomatically, same will be disposed of by the said Tribunal

untrammeled by any of my observations here.

Sd/-

DEVAN RAMACHANDRAN JUDGE ANB WP(C) NO. 24540 OF 2021

APPENDIX OF WP(C) 24540/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE REGISTERED SALE CERTIFICATE DATED 8.10.2010.

Exhibit P2 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 17.5.2011.

Exhibit P3 TRUE COPY OF THE SALE DEED NO. 4849 OF 2002 DATED 18.12.2002.

Exhibit P4 TRUE COPY OF THE ORDER DATED 11.1.2010 OF THE RECOVERY OFFICER, DRT, ERNAKULAM.

Exhibit P5 TRUE COPY OF THE COMMISSION REPORT DATED 24.6.2013.

Exhibit P6 TRUE COPY OF THE ORDER DATED 29.3.2017 OF THE RECOVERY OFFICER, DRT, ERNAKULAM.

Exhibit P7 TRUE COPY OF THE ORDER DATED 20.6.2018 PASSED BY THE 3RD RESPONDENT.

Exhibit P8 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 4.3.2020.

Exhibit P9 TRUE COPY OF THE ORDER DATED 25.8.2021 PASSED BY THE IST RESPONDENT.