Smt.Gummadi Shashi Rekha, vs Commissioner,G.H.M.C., ...
2022 Latest Caselaw 2939 Tel

     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                   W.P.No. 19878 of 2012

ORDER:

Heard Sri Sharad Sanghi, learned counsel for the

petitioner and Sri Chatla Madhu, learned standing counsel for

the respondents.

2. The case of the petitioner, in brief, is that the entire

property previously was joint family property, held in the

name of Karta Sri G.Shanker Reddy, who is the father of the

petitioner's husband i.e Sri Shankar Reddy, who died on

17.02.1996 and the wife of Sri Shankar Reddy i.e. Smt

G.Rajmani died on 16.12.2000. The petitioner's husband -

Sri G.Pandu Reddy @ G.Pandu Ranga Reddy acquired house

property bearing Municipal No.2-9-102 admeasuring 224.36

sq. yards situated at Buttonguda, Macha Bolaram, Alwal

Municipality, Medchal Taluq, Malkajgiri Mandal, Ranga Reddy

District towards his share from the ancestral property. The

petitioner's husband Pandu Ranga Reddy bequeathed the said

property in petitioners favour under a Gift Deed bearing

document No.318/1, dated 01.02.2011. After becoming the

owner of the subject property, the petitioner approached the SN,J 2 WP_19878_2012

respondent herein on 03.06.2011 for mutation of the

petitioner's name in the municipal records by putting up

proper application along with annexures as is required. On

28.06.2011, the respondent has issued notice calling upon the

petitioner to submit the death certificate, family members'

certificate of Sri G.Shankar Reddy and also no objection

affidavit of the family members of late G.Shankar Reddy. The

petitioner has given reply to the said notice on 17.07.2011

stating that as all the other family members of late G.Shankar

Reddy are residing separately, the petitioner is unable to

submit the family member certificate and no objection

affidavit of other members of the family, but however, the

petitioner submitted death certificate of late G.Shankar

Reddy. The case of the petitioner further is that in spite of

specific application made by the petitioner on 03.06.2011, the

respondent did not pass any order of refusal, but instead

called upon the petitioner for the documents to be submitted

are otherwise are not relevant for the mutation of the

property and finally the petitioner received the impugned

order vide No. A2/CSC/26052/2011-12, dated 06.03.2012

observing as follows:

SN,J 3 WP_19878_2012

"As such, in the absence of documents called for, the request of the petitioner for mutation of House No.2-9-102 in the name of the petitioner may not be considered. Hence, this is for information."

3. Learned counsel for the petitioner mainly contends as

follows:

a) Though the petitioner made an application on 03.06.2011, the respondent did not pass any order of refusal, but called for the documents to be submitted which otherwise are not relevant for the mutation of the property.

b) The respondent did not adopt the procedure as mandated under Section 3 of the Hyderabad Municipal Corporation (Registry of the Transfer of Ownership of Properties in the Assessment Book) Rules, 1965 (for short ' the HMC Rules, 1965').

c) It is not for the respondent corporation to decide the title of the property and under a registered Gift Deed, the title has already been passed on to the party concerned and any person, who is aggrieved by the said decision, should approach a proper Court of law, in this regard.

d) Learned counsel for the petitioner placed on record Memo dated 25.06.2013, with reference to the instructions issued by the Government relating to issuance of Family Members Certificate by the Tahsildar SN,J 4 WP_19878_2012

concerned and emphasized that as per the said memo dated 25.06.2013, the Mandal Revenue Officers are not competent to issue Legal Heir Certificate and only Courts of law are competent to issue legal heir/succession certificates and that the Mandal Revenue Officer can only issue Family Membership Certificate in respect of the Government employees and that too to receive Government dues, if any dues are payable to the Government servant, in case of death.

e) Learned counsel for the petitioner relies on the judgment reported in Nand Kishwar Bux Roy v Gopal Bux Rai and others1 and contends that the mutation proceedings are merely in the nature of fiscal inquiries, instituted in the interest of the state for the purpose of ascertaining which of the several claimants for the occupation of the property may be put into occupation of it with the greater confidence that the revenue for it will be paid.

f) Learned counsel for the petitioner placed reliance on the judgment of the Apex Court reported in Calcutta Municipal Corporation and others v Shrey Mercantile (P) Limited and others2 in Civil Appeal No.5631 of 2000 decided on 09.03.2005 and contends that mutation enquiry is instituted in the interest of the

AIR 1940 PC 93

(2005(4) SCC 245 SN,J 5 WP_19878_2012

corporation for tax purposes and not for the benefit of the tax payer and further the purpose of mutation is to register the transfer in the records of the corporation which in turn would help the corporation to recover taxes from the existing tax payers.

g) Learned counsel for the petitioner also placed reliance on the judgment in B.Neeraja v Revenue Divisional Officer, East Division Ranga Reddy District3 and contends that neither in the Act nor under the Rules, it is laid down that obtaining Legal Heir Certificate is a sine qua non for mutation.

4. Learned standing counsel for the respondent

corporation, on the other hand, relies on para 5 of the counter

affidavit filed by the respondent and contends that in

response to the office notice dated 06.03.2011 of the

respondent, the petitioner submitted death certificate of late

G.Shanker Reddy only and could not submit the other

remaining documents referred to in the notice dated

06.03.2011 of the respondent herein that is (1) family

member certificate of late G.Shanker Reddy (2) No objection

affidavit from family members of late G.Shankar Reddy. Then

2013(5) ALD 579 SN,J 6 WP_19878_2012

vide intimation Lr.No.A2/CSC/26052/2011, dated 15.11.2011

the petitioner was called upon to submit further documents to

satisfy the request of the petitioner and that the respondent is

entitled to call for further documents to satisfy the request of

the petitioner and that the petitioner, however, failed to

submit the required documents for mutation of the property

No.2-9-102 in the name of the petitioner. As such the

petitioner had been informed vide impugned order

No.A2/CSC/26052/2011-12, dated 06.03.2012, that the

petitioner's request may not be considered.

5. Taking into consideration the submissions made by

learned counsel for the petitioner and learned standing

counsel for the respondent and on perusal of the record, this

Court opines as follows:

a) Admittedly, as borne on record in spite of specific application made by the petitioner on 03.06.2011, the respondent did not pass any order of refusal adopting the procedure prescribed under Section 3 of the HMC Rules, 1965.

Section 3 of the HMC Rules, 1965 is extracted hereunder:

"Section 3: In effecting changes in the ownership of properties in the Assessment Books on the application SN,J 7 WP_19878_2012

of any party, whether as a general revision or between one general revision and another, the Commissioner or any officer duly authorized by him, shall observe the following provisions, namely:-

(1) Transfer by voluntary action of owners:- In all cases of absolute transfer of title, the registry of properties may be altered to correspond with the transfer of ownership of such properties on a notice given to the Commissioner or any officer duly authorized by him in Form I prescribed in Schedule 'F' to the Act by both the parties to the transfer to either of them: Provided that the notice for register of the transfer it, and given of ownership shall be in writing and signed by the party or parties giving within three months from the date of execution of the instrument of transfer or where the instrument is registered, within three months from the date of such registration.

Such notice may be send by post or presented in person or by a duly authorized agent. Where such notice is given by both the parties and one of them is the registered owner, the registry of the transfer of ownership may be ordered at once. But where only one of the parties to transfer gives notice, a notice stating that one of the parties to the transfer has given notice for the registry of the transfer of ownership shall be served on the other party. Where the registered owner is not a party to the transaction, notice shall be served SN,J 8 WP_19878_2012

on the registered owner also where the transfer of registry is presented by both the parties or either of them. If the registered owner objects to the proposed registry of the transfer of ownership, no change shall be made unless the person who claims to be the owner produces evidence to the satisfaction of the Commissioner or any officer duly authorized by him. Where only one party to the transaction given notice and the other either objects to the registry of the transfer of ownership or does not take any steps, the transaction shall evidenced by documents regarding the genuineness of which the Commissioner shall satisfy himself before ordering the registry of the transfer of ownership. In the absence of such documents, statements of neighbours of the property, the transfer of ownership of which is sought to be registered and the tax receipts, if any, may be taken in to considerations. Objection, if any, shall be filed by the parties with in one month from the date of issue of the notice and shall be considered by the commissioner or any officer duly authorized by him in this behalf."

b) A bare perusal of Section 3 of the HMC Rules, 1965 clearly indicates that in the absence of documents, statements of entries of the property, transfer of ownership of which is sought to be registered and the tax receipts, if any, may be taken into consideration and a detailed procedure is stipulated for the respondent SN,J 9 WP_19878_2012

herein under Section 3 of the HMC Rules, which has to be necessarily followed by the respondent herein. But the said mandatory procedure has been totally ignored and without application of mind, mechanically, the impugned order has been issued to the petitioner, which is not actually an order. The application of the petitioner dated 03.06.2011 has not been considered in a proper perspective as per the spirit and procedure contemplated under Section 3 of the HMC Rules, 1965.

6. It is very clear that as per the memo dated

25.06.2013, the Mandal Revenue Officers are not competent

to issue Legal Heir Certificate and only Courts of law are

competent to issue Legal Heir Certificate and further that the

Mandal Revenue Officer can give only Family Membership

Certificate in respect of Government employees and that too

to receive Government dues, if any, dues are payable to the

Government servant, in case of death. Therefore, the

respondent herein cannot insist for the Family Membership

Certificate of late G.Shanker Reddy.

7. The respondent herein did not consider the explanation

dated 17.07.2011 submitted by the petitioner herein in

response to the notice dated 28.06.2011. It is clearly SN,J 10 WP_19878_2012

explained in the said explanation that the petitioner's husband

got himself separated from his other family members' long

long back and are living independently, for a long

considerable period and therefore, it is very difficult to obtain

no objection of the family members of late G.Shanker Reddy.

8. Under these circumstances, taking in to consideration,

the view taken by the Apex Court in the judgments (1) Nand

Kishwar Bux Roy (2) Calcutta Municipal Corporation and

others and (3) B.Neeraja referred supra, and also the fact

that admittedly as borne on record, the entire procedure laid

down under Section 3 of the HMC Rules, 1965 has not been

followed by the respondent herein and the respondent

admittedly did not pass any order of refusal on the specific

application dated 03.06.2011 made by the petitioner since in

the last para of the letter dated 06.03.2012, it is observed as

follows:

"As such in the absence of documents called for the request of the petitioner for mutation of H.No.2-9-102 in the name of the petitioner may not be considered. Hence, this is for information."

SN,J 11 WP_19878_2012

9. In view of the above, the impugned order dated

06.03.2012 is set aside and the respondent is directed to

consider the application dated 03.06.2011 of the petitioner

afresh in a proper perspective as per the spirit and procedure

laid down under Section 3 of the HMC Rules, 1965, duly

considering the explanation of the petitioner dated

17.07.2011 in reply to the Notice dated 28.06.2011 of the

respondent and pass appropriate orders, within four weeks, in

accordance with law, from the date of receipt of a copy of this

order.

10. Accordingly, the writ petition is allowed. There shall be

no order as to costs.

Miscellaneous petitions pending, if any, pending in this

writ petition shall stand closed.

_________________ SUREPALLI NANDA, J Date:21.06.2022 Note: L.R copy to be marked/not b/o kvrm