T.V.Rajesh vs Deleted, State Of Kerala
2022 Latest Caselaw 8470 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
                                  TH
               WEDNESDAY, THE 6        DAY OF JULY 2022 / 15TH ASHADHA, 1944

                                  WP(C) NO. 4617 OF 2020
PETITIONER:

         T.V.RAJESH, AGED 46 YEARS, S/O.THANKAPPAN ASSARI, RESIDING AT RAJESH BHAVAN,
         VARUVILAKATHU VEEDU, T.C.11/958, NALANDA ROAD, NANTHANCODE, KAWDIAR P.O.,
         THIRUVANANTHAPURAM.

         BY ADVS.M.GOPIKRISHNAN NAMBIAR
         K.JOHN MATHAI
         SRI .CHETAN KRISHNA
         JOSON MANAVALAN
         KURYAN THOMAS
         PAULOSE C. ABRAHAM
         RAJA KANNAN


RESPONDENTS:

   1     STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM - 695 001.        (DELETED, )
         RESPONDENT NO.1 IS DELETED FROM THE ARRAY OF PARTIES AS PER ORDER
         DATED 18-02-2020 IN WP(C)

   2     KERALA LOK AYUKTHA, OFFICE OF THE KERALA LOK AYUKTHA, VIKAS BHAVAN,
         LEGISLATIVE COMPLEX, THIRUVANANTHAPURAM - 695 033.

   3     VILLAGE OFFICER, KOWDIAR VILLAGE OFFICE, KOWDIAR,
         THIRUVANANTHAPURAM - 695 003.

   4     ADDITIONAL TAHASILDAR (LR), TALUK OFFICE, FORT, THIRUVANANTHAPURAM - 695 023.

   5     SHEELA REMANI, D/O.PONNAMMA, AGED 60 YEARS, T.C.11/965(1), HILL GARDEN, NALANDA
         ROAD, NANTHENCODE, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003.

         BY ADVS.SRI.C.R.SIVAKUMAR
         SMT.MINI.M.NAIR
         SRI.TEKCHAND, GOVT. PLEADER

       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2022, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 4617 OF 2020
                                        :: 2 ::




                                    JUDGMENT

Dated this the 6th day of July 2022

Shaji P. Chaly, J.

This writ petition is filed by the petitioner challenging Exts.P11

and P11(a) orders passed by the Kerala Upa LokAyukta in Complaint

No.908/2017 dated 8th August 2017 and 21st July 2017 and also for

quashing Ext.P12 complaint filed before the Kerala LokAyukta. The

case projected by the writ petitioner is that during the pendency of a

civil dispute, the 5th respondent in the writ petition namely, Sheela

Remani approached Upa LokAyukta and has obtained the impugned

orders. It is the case of the writ petitioner that the complaint was

filed before the Upa LokAyukta without making the writ petitioner as

a party, who was a necessary party, in the complaint. It is also

submitted that the subject matter of Exts.P11 and P11(a) orders and

Ext.P12 complaint are the same subject matter of Ext.P5 suit i.e.,

O.S.No.1084/2018, Ext.P9 suit i.e., O.S.1694/2013 on the files of the

Munsiff's Court, Thiruvananthapuram, Ext.P9(a) order passed by the

Additional District Judge - II, Thiruvananthapuram in A.S.No.43/2017,

an offshoot from an order passed in I.A.No.8586/2016 in WP(C) NO. 4617 OF 2020 :: 3 ::

O.S.No.1694/2013 filed by Sheela Remani, and an FAO pending before

this court evident from Ext.P10 case status details. The main

grievance of the petitioner is that in Exts.P11 and P11(a) orders

passed by the Upa LokAyukta, a positive direction is issued which is

likely to affect the proceedings in the civil disputes pending by and

between the parties and therefore, the directions are to be set aside

apart from setting aside Ext.P12 complaint since it is concerning a

civil dispute. It is also the case of the writ petitioner that since it is a

civil dispute by and between the parties the Upa LokAyukta ought not

have entertained the complaint before it.

2. A counter affidavit is filed by Sheela Remani - 5 th respondent

basically contending that the 5th respondent has filed the complaint

before the Upa LokAyukta alleging maladministration on the part of

the Village Officer and the Tahsildar, who are respondents 3 and 4 in

the writ petition, for not granting mutation of the property

purchased by the 5th respondent. It is also submitted that pursuant to

the directions issued by the Upa LokAyukta in Exts.P11 and P11(a)

orders, the Tahsildar has granted mutation of the property and

accepted land tax from the 5th respondent for the years 2017-2018 and WP(C) NO. 4617 OF 2020 :: 4 ::

2018-2019 and the complaint was closed accordingly. It is also

submitted that when the 5th respondent approached the Tahsildar for

remitting land tax for the year 2019-2020, he was reluctant to accept

the same and it was thereupon that the 5th respondent has filed

Ext.P12 complaint No.206/2019 before the Upa LokAyukta and after

filing the complaint, the 4th respondent accepted the land tax on

6.2.2020 and accordingly, Ext.P12 complaint is closed. Therefore, the

sum and substance of the contention advanced by the 5 th respondent

is that the orders issued by the Upa LokAyukta having been complied

with, the prayers made in the writ petition to set aside Exts.P11 and

P11(a) and to quash Ext.P12 have virtually become inconsequential

and redundant. Be that as it may, the important contention put forth

by the petitioner is that in none of the civil suits pointed out by the

petitioner, details of which are produced along with the writ petition,

the writ petitioner is a party and the petitioner therefore is

incompetent to file a writ petition claiming any benefits out of the

property in question on that basis.

3. We have heard learned counsel for the petitioner Sri.Chethan

Krishna, learned Senior Government Pleader Sri.Tekchand and WP(C) NO. 4617 OF 2020 :: 5 ::

learned counsel for the 5th respondent, Smt.Mini M. Nair and perused

the pleadings and material on record.

4. The primary question to be considered is whether any

interference is required to Exts.P11 and P11(a) orders passed by the

Upa LokAyukta in Complaint No.908/2017. On a reading of Exhibit

P11 order, we are quite clear that, it is an order passed on 8 th August

2017 taking note of the contention advanced by the 5 th respondent

that in spite of the submission of application for effecting mutation,

the Revenue Authorities have not cared to act upon the same which is

maladministration as defined under the provisions of the Kerala

LokAyukta Act, 1999. The definition of maladministration contained

thereunder reads thus:

(k) "mal-administration" means action taken or purporting to have been taken in the exercise of administrative functions in any case where,--

(i) such action or the administrative procedure or practice adopted in such action is unreasonable, unjust, oppressive or improperly discriminatory; or

(ii) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay;

WP(C) NO. 4617 OF 2020 :: 6 ::

5. On a reading of the said provision, it is clear that any

inaction on the part of an officer of the Government to discharge a

duty in contemplation of any statute or rules, it is a

maladministration thus conferring power on the Upa LokAyukta to

act upon a complaint and adjudicate the same in accordance with the

provisions of the Act, 1999. It is quite clear from Ext.P11 order that

on the basis of directions given in Ext.P11 order, the Tahsildar was

present before the Upa LokAyukta and submitted that the

complainant has already applied for mutation and the Tahsildar has

no objection to effect mutation in the light of the clarification of law

made by the Upa LokAyukta. Therefore, it was directed that the

Tahsildar shall effect mutation in favour of the 5 th

respondent/complainant in relation to Ext.P1 title deed obtained by

her from the executant who is the pattadar; and consequently,

directed the Village Officer to receive tax from the complainant and

the matter was posted to 18.8.2017 for report. The main grievance

projected by the petitioner so far as concerning Ext.P11 order is that

in the order the civil rights claimed by the complainant as per Ext.P2

settlement deed was settled by the Upa Lokayukta by adjudicating on WP(C) NO. 4617 OF 2020 :: 7 ::

title, which is impermissible under law. Therefore, it is submitted

that, the Upa LokAyukta having observed that document No.52/1979

has taken effect and executants of Exts.P1 and P2 have all acted on the

basis of the right under Settlement Deed No.52/1979 and the vendor

of the complainant has obtained patta and continuously paid tax in

relation to the said property from 2006 onwards, would stand in the

way of the competent civil court to consider the claim of title of the

writ petitioner. Therefore, it is submitted that the Upa LokAyukta,

which is not vested with powers to adjudicate a civil right of the

parties has exceeded his jurisdiction and has passed an illegal order.

In fact in Ext.P11 (a) order also, the Upa LokAyukta found that the

earlier order passed by it is not complied with and therefore, further

directions are issued. First of all, the order passed by the Upa

LokAyukta was acted upon by the Tahsildar and the Village Officer as

early as in the year 2017. This writ petition was filed in the year 2020

that is almost three years after Exts.P11 and P11(a) orders were

passed. From the records, we find that Ext.P12 complaint

No.206/2019 happened to be instituted by the 5th respondent herein

since the tax for the period 2019-2020 was not accepted. However, WP(C) NO. 4617 OF 2020 :: 8 ::

thereafter, the tax was accepted and accordingly, the said complaint

was also closed. The record of proceedings and the documents

produced by the writ petitioner would show that in none of the civil

suits referred to above the petitioner is a party. Various contentions

are raised by the petitioner relying upon the suit proceedings and the

appeal proceedings deliberated above, but we are at a loss to

understand how without being a party to any of the proceedings any

contention could be raised by the petitioner relying upon the civil

suits pending before the civil courts. That apart, an order passed by

the statutory authority under the Transfer of Registry Rules, 1966 is

after conducting due verification of any documents produced by the

applicant. It is an admitted fact that after purchase of the property,

the 5th respondent submitted an application for effecting mutation of

the property, which was not done by the Tahsildar and consequently,

tax was not accepted by the Village Officer. It was the said

circumstance that persuaded the 5th respondent to approach the

LokAyukta. On an appreciation of the facts, we are of the clear

opinion that since there was inaction on the part of the Tahsildar or

the Village Officer to consider the application submitted by the 5 th WP(C) NO. 4617 OF 2020 :: 9 ::

respondent, the 5th respondent was entitled to prefer an application

before the LokAyukta on the ground of maladministration as is clear

from the definition provided to maladministration under the Act,

1999. Moreover, when a transfer of registry is granted by the

competent authority under the Transfer of Registry Rules, 1966, it can

be changed by the competent authority, if any Judgment and decree

are passed in favour of any third person in respect of the property for

which the transfer of registry was granted. Here, the main case

advanced by the petitioner is that due to the finding rendered by the

Upa LokAyukta in respect of cancellation of a settlement deed;

execution of a new settlement deed; and that the vendor of the 5 th

respondent had title to transfer the property would stand against the

petitioner. As we have pointed out above, petitioner has not at all

established in the writ petition that the petitioner has any right over

the property in question. However, as we have pointed out above, if

any declaration is made by a competent civil court in favour of the

petitioner or any other person in respect of their title to the property

in question and on submitting any application, it is for the authority

under the Transfer of Registry Rules, 1966 to consider the same and WP(C) NO. 4617 OF 2020 :: 10 ::

decide on the entitlement of the said person for the transfer of

registry. In that view of the matter and since the petitioner has not

established any rights in his favour so as to attack the impugned

orders passed by the Upa LokAyukta, we are not inclined to exercise

the discretionary jurisdiction conferred on us under Article 226 of the

Constitution of India.

Needless to say, writ petition fails accordingly, it is dismissed.

However, we make it clear that in spite of the findings rendered by

the Upa LokAyukta in the impugned orders Exts.P11 and P11(a), any

judgment/decree passed by a competent civil court if produced along

with any application in respect of very same property, it is for the

authority under the Transfer of Registry Rules, 1966 to consider the

same in accordance with law and pass appropriate orders.

SD/-

S.MANIKUMAR CHIEF JUSTICE

SD/-

SHAJI P. CHALY JUDGE jes WP(C) NO. 4617 OF 2020 :: 11 ::

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 COPY OF SALE DEED NO.4089/2005 OF PATTOM SRO DATED 8/9/2005 WITH ENGLISH TRANSLATION.

EXHIBIT P1(a) COPY OF ENCUMBRANCE CERTIFICATE ISSUED BY PATTOM SRO DATED 6/10/2012 WITH ENGLISH TRANSLATION.

EXHIBIT P2 COPIES OF THE LAND RECEIPTS OF THE PETITIONER ISSUED BY THE VILLAGE OFFICER, KAVADIYAR WITH ENGLISH TRANSLATION. EXHIBIT P3 COPY OF THE LICENCE ISSUED BY THE THIRUVANANTHAPURAM CORPORATION WITH ENGLISH TRANSLATION DATED 23.10.2018.

EXHIBIT P4 COPY OF THE FIR IN CRIME NO.663/2018 OF THIRUVANANTHAPURAM CITY POLICE STATION DATED 18/06/2018 WITH ENGLISH TRANSLATION. EXHIBIT P5 COPY OF THE PLAINT IN O.S.NO.1084/2018 DATED 29/06/2018 FILED BY THE 5TH RESPONDENT BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM. EXHIBIT P6 COPY OF THE WRITTEN STATEMENT IN O.S.NO.1084/2018 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM. EXHIBIT P7 COPY OF THE ORDER OF CANCELLING THE MUTATION OF PROPERTY TO SMT.SHARADAMANI BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM DATED 06/01/2016 WITH ENGLISH TRANSLATION.

EXHIBIT P8 COPY OBTAINED BY THE PETITIONER AS PER RIGHT TO INFORMATION ACT WITH ENGLISH TRANSLATION DATED 5.6.2017.

EXHIBIT P9 COPY OF THE PLAINT IN O.S.NO.1694/2013 DATED 16/11/2013 FILED BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM WITH ENGLISH TRANSLATION. EXHIBIT P9(a) COPY OF THE A.S.NO.43/2017 FILED BY HE 5TH RESPONDENT DATED 14/11/2017 BEFORE ADDITIONAL DISTRICT JUDGE-II,THIRUVANANTHAPURAM. EXHIBIT P10 COPY OF THE COURT STATUS IN FAO (RO) NO.10 OF 2019 OF THIS HON'BLE COURT. EXHIBIT P11 COPY OF THE ORDER DATED 08/08/2017 IN COMPLAINT NO.908/2017 C. EXHIBIT P11(A) COPY OF THE ORDER DATED 21/07/2017 IN COMPLAINT NO.908/2017 C WITH TYPED COPY OF EXT.P11(a).

EXHIBIT P12 COPY OF THE SAID COMPLAINT NO.206/2019 A FILED BY THE 5TH RESPONDENT BEFORE THE KERALA LOK AYUKTA,THIRUVANANTHAPURAM DATED 29/6/2019. Exhibit P13 TRUE COPY OF THE JUDGMENT PASSED BY THE ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM (RCC) IN O.S. 1694/2013, DATED 19.09.2015. Exhibit P14 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN F.A.O. (R.O) 10/2019 DATED 01.02.2022.

RESPONDENTS' EXHIBITS:

EXHIBIT R5(A) THE TRUE COPY OF THE TAX RECEIPT DATED 06.02.2020 AND ITS ENGLISH TRANSLATION.

// TRUE COPY // P.S. TO JUDGE