Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943 WP(C) NO. 3301 OF 2022 PETITIONER: SINI, AGED 44 YEARS, D/O.LATE ABDUL AZEEZ, S.S.COTTAGE, CHUNDA, CHERUKULAM P.O., ITTIVA VILLAGE, ANCHAL, KOLLAM-691 306. B.MOHANLAL P.S.PREETHA MANSOOR ALI SHINE N.S KARTHIK J SEKHAR RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE DISTRICT COLLECTOR, COLLECTORATE, CUTCHERY P.O., KOLLAM-691 013. 3 THE ADDITIONAL TAHASILDAR (LR), TALUK OFFICE, KOTTARAKKARA, KOLLAM-691 506. 4 THE VILLAGE OFFICER, ITTIVA VILLAGE, ITTIVA P.O., ANCHAL, KOLLAM-691 536. SMT.K. AMMINIKUTTY SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2022, ALONG WITH WP(C).26234/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, WP(C) NO. 26234 OF 2017 PETITIONER: M.NABEEZATH, W/O.LATE M.ABDUL AZEEZ, S.S.COTTAGE, ITTIVA VILLAGE, CHUNDA MURI, KADAKKAL, KOLLAM. BY ADV SRI.B.MOHANLAL RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHUPURAM - 695 001. 2 THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695033. 3 THE REVENUE DIVISIONAL OFFICER COLLECTORATE, CUTCHERY.P.O, KOLLAM-691013. 4 THE ADDITIONAL TAHSILDAR TALUK OFFICE, KOTTARAKKARA, KOLLAM-691506. 5 THE VILLAGE OFFICER, ITTIVA VILLAGE, KOTTUKKAL.P.O, KOTTARAKKARA, KOLLAM,PIN-691306. 6 THE DEPUTY TAHSILDAR (RR) TALUK OFFICE, KOTTARAKKARA, KOLLAM-691506. 7 SRI.RIYAS, MELEKULANGARA VEEDU, ARKANNOOR.P.O, AYUR, KOTTARAKKARA, KOLLAM, PIN-691533.
8 SRI.IBRAHIMKUNJU, KURANTHARA CHARUVILA PUTHEN VEEDU, ARAKANNOOR.P.O, AYUR, KOTTARAKKARA, KOLLAM, PIN-691533. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2022, ALONG WITH WP(C).3301/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
[WP(C) Nos.3301/2022, 26234/2017] These two writ petitions are being disposed of jointly through this judgment, since the factual factors involved are inter-layered and the reliefs sought for are certainly interdependent.
2. W.P.(C) No.26234/2017 has been filed by
Smt.M.Nabeezath, impugning Ext.P7 order issued by the second respondent - Land Revenue Commissioner (for short, 'the Commissioner') confirming Exts.P1, P2 and P4, as per which, a revenue recovery action against her husband - late Sri.Abdul Azeez, had been initiated on the allegation that he had quarried excess of what was permitted and beyond the period which was granted.
3. Smt.Nabeezath vehemently asserts, relying on Ext.P5
information - that her husband obtained from the Public Information Officer of the Taluk Office, that the allegation against him is untenable and that the alleged excess quarrying was done by someone else and not him. She says that, therefore, she had no other option but to approach the second respondent through a statutory revision against the
aforementioned order, but that it has now been culminated in Ext.P7, merely saying that the revenue recovery action is without error. Smt.Nabeezath, therefore, prays that Ext.P7 be set aside.
4. While so, through W.P.(C) No.3301/2022, after the
death of Sri.Abdul Azeez and on the strength of Ext.P2 Will stated to have been settled by him, his daughter - Smt.Sini has approached this Court seeking transfer of Registry of the property covered by the said instrument in her favour and praying that she be allowed to remit land tax thereon. According to her, even if there is any revenue recovery action pending on the said property - which she disputes - it is not a bar from acceding to her request and therefore, prays that it be directed to be done without any further delay.
5. I have heard Sri.B.Mohan Lal, learned counsel for the petitioner in both cases and Smt.Amminikutty, learned Senior Government Pleader .
6. The afore requests of the learned counsel for the
petitioners were vehemently contested by Smt.Amminikutty saying that W.P.(C) No.3301/2022 has been filed by Smt.Sini suppressing the fact that W.P.(C) No.26234/2017 is pending before this Court. She submitted that as long as revenue recovery proceedings are pending on the property and since statutory notices under Section 34 of the Revenue Recovery Act has already been issued, there is no question of Smt.Sini obtaining any competence to deal with it.
7. As far as the merits of W.P.(C) No.26234/2017 is
concerned, Smt.K.Amminikutty argued that the contentions of Smt.M.Nabeezath is without basis because, as is limpid from Ext.P7 therein, the second respondent - Commissioner had considered her contentions to find, based on the relevant inputs and reports of the other competent Authorities, that her husband had quarried much beyond the area granted to him and beyond the period allowed. She, therefore, prayed that Ext.P7 be not interdicted and consequently that W.P.(C) No.26234/2017 be dismissed.
8. I have evaluated the afore submissions on the touchstone of the various materials and documents available on record.
9. As rightly stated by Sri.B.Mohan Lal, Smt.M.Nabeezath has approached this Court through W.P.(C) No.26234/2017 impugning Ext.P7, which is an order of the
Commissioner on her statutory revision. Normally, the said Authority ought to have considered each of the contentions and ought to have formulated his opinion on the same and recorded it in the resultant order. However, going by Ext.P7,
after inditing various contentions of Smt.M.Nabeezath, he concludes, through a sentence, that going by the report of the Village Officer as also the Tahsildar, the allegation against her husband, that he had quarried beyond the time and extent granted and allotted to him, is true. Pertinently, however, the said Authority does not explain how he found so, especially when the petitioner relies on Ext.P5 to show that her husband cannot be seen to have conducted any quarrying prior to 30.05.2009.
10. In such perspective, I am certainly of the view that
Ext.P7 cannot find favour of this Court and that the matter will certainly require to be reconsidered by the Commissioner in terms of law, after hearing Smt.Nabeezath afresh and adverting to Ext.P5 or such other document that she may produce in substantiation of her plea.
11. As a corollary consequence, W.P.(C) No.3301/2022 will require to be favoured with relief, but only in a modulated
fashion, because as long as a revenue recovery action is pending, the petitioner therein - Smt.Sini, cannot be allowed to freely deal with the property or commit any action on it to
the prejudice of the Revenue. This is also because the learned Senior Government Pleader points out that, as per Ext.P2 Will, which Smt.Sini is relying upon, it is only after the death of her mother, can she be entitled to its full ownership. Of course, Sri.Mohan Lal, her learned counsel, submitted that Smt.Nabeezath is willing to execute an apposite consent in favour of Smt.Sini, so that her prayer for transfer of Registry can be completed without impediment.
In the afore circumstances and taking note of the specific circumstances involved in these cases, I dispose of these writ petitions in the following manner:
A (i) W.P.(C)No.26234/2017 is allowed and Ext.P7 is set aside; with a consequential direction to the 2 nd respondent to reconsider the statutory Revision filed by Smt.Nabeesath in terms of my observations above and adverting to Ext.P5 and such other documents that she may produce before him during the time of hearing; thus culminating in an appropriate order thereon, as
expeditiously as is possible but not later than four months from the date of receipt of a copy of this
judgment.
(ii) Needless to say, this exercise shall be completed only after affording Smt.Nabeesath an appropriate opportunity of being heard.
B (i) W.P.(C)No.3301/2022 is allowed; however, to the limited extent of directing the 4th respondent - Village Officer to consider the application of the petitioner for transfer of Registry of the property de hors Ext.P6 and issue appropriate orders thereon, adverting to the petitioner's contention that the mere pendency of a Revenue Recovery action is not a bar on her request being acceded to.
(ii) I, however, make it clear that, even if the Village
Officer is to find in her favour, the transfer of Registry or any other action on the property shall be allowed with a clear endorsement on the records and also the tax receipts and such other, that Revenue Recovery action, which is the subject matter in W.P.(C)No.26234/2017, is pending; which endorsement shall only be erased only if
the statutory Revision, as ordered in the afore writ petition, is found in favour of Smt.Nabeesath and not otherwise.
(iii) This shall be done by the Village Officer, as expeditiously as is possible but not later than one month from the date of receipt of a copy of this judgment.
Sd/- DEVAN RAMACHANDRAN JUDGE stu APPENDIX OF WP(C) 26234/2017 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE REVENUE RECOVERY NOTICES NO:D7-21928/13 DATED 27/10/2014 UNDER SECTION 7 AND 34 OF THE REVENUE RECOVERY ACT. EXHIBIT P2 THE TRUE COPY OF THE PROCEEDINGS NO:B1- BY THE 3RD RESPONDENT TO THE PETITIONER ON EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT IN W.P. (C)NO.30841/2014 DATED 19/11/2014 OF THIS HON'BLE COURT EXHIBIT P4 THE TRUE COPY OF THE ORDER NO:K.DIS.D- RESPONDENT EXHIBIT P5 THE TRUE COPY OF THE REPLY NO:B5-4827/15 DATED 09/03/2015 SENT BY THE 4TH RESPONDENT EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT DATED HON'BLE COURT. EXHIBIT P7 THE TRUE COPY OF THE ORDER NO:LR/(K3)- 2ND RESPONDENT. APPENDIX OF WP(C) 3301/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT FOR THE
YEAR 2021-2022 REMITTED BY THE FATHER OF THE PETITIONER SRI.ABDUL AZEEZ BEFORE THE 4TH RESPONDENT DATED 25.09.2021. Exhibit P2 TRUE COPY OF THE WILL NO.71/III/15 DATED 31.03.2015 OF THE CHADAYAMANGALAM SUB REGISTRY EXECUTED BY THE FATHER OF THE PETITIONER SRI.ABDUL AZEEZ. Exhibit P3 TRUE COPY OF THE DEATH CERTIFICATE OF PETITIONER'S FATHER SRI.ABDUL AZEEZ DATED 30.06.2017 OBTAINED FROM THE REGISTRAR OF BIRTH AND DEATH NEDUMPANA GRAMA PANCHAYATH.
Exhibit P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT TO EFFECT MUTATION AND TO ACCEPT LAND TAX. Exhibit P5 TRUE COPY OF THE JUDGMENT IN WPC NO.35200/2016 OF THIS HON'BLE COURT. Exhibit P6 TRUE COPY OF THE REPORT NO.1/22 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT.