WP(C)/16611/2012 of THOMAS.K.P @ TOMCHAND Vs THE DISTRICT COLLECTOR on 31 December 2012

J U D G M E N T

The issue involved in both these cases is closely interlinkedwith each other, particularly with reference to the relative rightsand interests to remit the basic tax in respect of the propertyowned by the concerned parties . The prayers raised in W.P.(C)16611 of 2012 are as follows:

“i) issue a writ of mandamus directingthe 3[rd] respondent to accept the tax from thepetitioner for the property stated in the Ex.P3tax receipt so long as the above propertystands in the Thandaper of the father of thepetitioner

ii) issue a direction to the 3[rd]respondent to abstain from taking anydecision of change of mutation of theproperty stated in the Ext.P3 tax receipt tillthe final disposal of O.S.No. 622/87 of theMunsiff's Court, or only in compliance withany direction of the first respondent in hisrevisional jurisdiction passed against Ext.P4order; iii) direct the respondent 2 and 4 to pay cost to the petitioner.

iv. grant such other and further reliefs whichthis Honourable Court deems fit to grantunder the circumstances of the case.”

The prayers raised in W.P.(C) 21835 of 2012 are extractedbelow:

“i) writ of mandamus or any other

appropriate writ, order or directiondirecting the 2[nd] respondent to dispose ofExhibit P1 application for effectingmutation as expeditiously as possible, inaccordance with law after hearing thepetitioner and the 4[th] respondent.

ii) such other writ, order or direction

which this Hon'ble Court deems, fit andproper to grant in the facts andcircumstances of the case.”

2. The sequence of events as narrated in both these writ petitions reveal that the petitioner in W.P.(C) 21835 of 2012,who is the 4[th] respondent in the other case purchased an extentof about 18.5 cents of land comprised in Sy.No.33/4-1 of

Mararikkulam North Village, as per the sale Deed No.4157/84 ofMararikkulam Sub Registry from the paternal uncle of thepetitioner in the other case by name Charly. As a matter of fact,there was a partition executed between the father of thepetitioner in W.P.(C) 16611 of 2012 by name Mr. Peter and hisbrother Charly and the claim of the petitioner in W.P.(C)21835 of2012 is only in respect of the property earlier owned, possessedand enjoyed by Mr. Charly. It is contended by the petitioner inthe other case i.e. W.P.(C) 16611 of 2012, that the father of thesaid petitioner came to note that there was some mistake in theproperty conveyed to the petitioner in the other case, in so far asthe possession handed over came to be of another extent thanthe one described in the sale deed executed by the brotherCharly. It was in the said circumstance, he filed a Civil Suit asOS.622/1987 before the Munsiff's Court, Cherthala fordeclaration of title and recovery of possession, whereininterference was declined and the Suit came to be dismissed.On filing appeal as A.S. 99 of 2002, the Judgment and decreewere set aside and it was remanded, as per the judgment dated

17.06.2011. It is stated that the matter is pending before theMunsiff's Court , Cherthala.

3. The case of the petitioner in W.P.(C) 16611 of 2012 is that his father was paying the basic tax of the propertyconcerned during his life time and after the demise of the fatherin the year 2001, the petitioner is remitting the same, as borneby Ext.P3. After the remand, a petition came to be filed foreffecting mutation in the name of the petitioner in W.P.(C)21835 of 2012, when Ext.P4 (produced in W.P.(C)16611 of2012) came to be passed by the RDO on 18.11.2011.

4. The case of the petitioner is that eventhough the RDOdirected to maintain 'status quo', the tax is not being acceptedfrom the petitioner in W.P.(C) 16611 of 2012 and no steps forcausing mutation to be effected in his name are being made,referring to the pendency of the Civil Suit, which in turn is soughtto be intercepted.

5. The petitioner in the other case , ie. W.P.(C) 21835 of2012, contends that the mistake occurred in the Basic Deed, ie.Partition deed, whereby the property came to be described as

31/9/C instead of actual Sy.No. As 33/4-1, is sought to becapitalised by the parties concerned virtually affecting the rightsand interests of the said petitioner, who has purchased theproperty for valuable sale consideration. It is the case of thepetitioner that she is residing in the said property with familyafter constructing a residential building for the past nearly 27years. Referring to the actual facts and figures, particularly thatthe property purchased by the petitioner therein was theproperty owned, possessed and enjoyed by Charly, i.e. thepaternal uncle of the petitioner in the other case, Ext.P1representation has been filed by the petitioner in W.P.(C)No.21835 of 2012 before the Tahsildar, Cherthala for effectingnecessary entries to effect mutation in respect of the propertyand to permit the petitioner to satisfy the basic tax . Pendencyof the Civil Suit cannot be a Bar in this regard, is the crux ofthe submission.

6. During the course of hearing, both the learned Counselappearing for the petitioners referred to the relevant provisionsof law and as to the pendency of the matter before the Civil

Court, however seeking to establish their rights to have mutationeffected in their names and to satisfy the tax. The factualposition is also brought to the notice of this Court by theGovernment by filing counter affidavit in W.P.(C) 16611 of 2012,wherein the mistake in the Sy.No. has been categorically statedin paragraph''8'. Detailed site inspection conducted by theDeputy Collector (LR) and the factual particulars elicited havealso been stated therein. It is also asserted that the concernedproperty is in the occupation of the petitioner in W.P.(C) 21835of 2012, which in fact is the property in Old. Sy.No.33-4-1. It isadded in paragraph '12' that the second respondent had notdirected the Village Officer to effect mutation in favour of anyparty concerned and that the averments to the contrary is notcorrect or sustainable.

7. During the course of hearing, it is also brought to thenotice of this Court that the competent authority to consider theissue is the Tahsildar by virtue of the relevant rule under theTransfer of Registry Rules. The decision to be rendered by thecompetent authority is always subject to the decision of the Civil

Court, by virtue of the stipulation in the relevant rule.

8. In the said circumstance, there will be a direction to thesecond respondent/Tahsildar, Cherthala ( in W.P.(C)21835 of2012) to consider Ext.P1 representation preferred by thepetitioner therein with regard to the grievance sought to beredressed and pass appropriate orders in accordance with law,after giving an opportunity of hearing to the petitioners.Pendency of the Civil Suit need not be considered as a hurdleand the orders and proceedings passed by the Tahsildar, asabove, will always be subject to the result of the verdict to bepassed by the Civil Court in the concerned civil case. Theproceedings, as above, shall be finalised at the earliest, at anyrate within 'six' weeks from the date of receipt of a copy of thejudgment.

Both the writ petitions are disposed of.

P.R. RAMACHANDRA MENON, JUDGE.