IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6248 of 2010(E)
1. CHANDRIKA, W/O.RAM BABU,
... Petitioner
2. SARASWATHI, W/O.SURENDRAN,
Vs
1. VILLAGE OFFICER, KADAMBANAD VILLAGE.
... Respondent
For Petitioner :SRI. K.SHAJ
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :05/08/2010
O R D E R
S. Siri Jagan, J.
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W.P(C) No. 6248 of 2010
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Dated this, the 5th day of August, 2010.
J U D G M E N T
Petitioners are the transferee and transferor respectively of
certain lands. They applied for mutation of land in favour of the 1st
petitioner, who is the purchaser. Their grievance in this writ petition
is that the respondent is refusing to effect mutation of the properties
in the name of the 2nd petitioner. Therefore, the petitioners seek the
following relief:
“To issue a writ in the nature of mandamus or any other
appropriate writ, direction or order commanding the respondent to
effect mutation of the above property in the name of the first
petitioner within a specified time limit.”
2. The learned Government Pleader, on instructions, submits
that it was after revenue recovery proceedings were initiated against
the 2nd petitioner that the 2nd petitioner transferred the property to
the 1st petitioner, which is against Section 44 of the Kerala Revenue
Recovery Act and therefore the transfer itself is not binding on the
Government. If such transfer is not binding on the Government, an
officer of the Government cannot be directed by a writ of mandamus
to effect mutation in respect of the property in favour of the
purchaser. He further submits that even going by the Transfer of
Registry Rules, the respondent is not bound to effect mutation in
respect of such transaction. The learned Government Pleader refers
to clause 7(2)(ii) of the Transfer of Registry Rules, wherein there is a
specific duty cast on the village officer to certify that the property is
not pledged as security for loans and it has not been attached by the
Government. For that reason also, mutation cannot be directed tobe
effected, is the contention raised by the learned Government Pleader.
3. I have considered the rival contentions in detail.
W.P.C. No. 6248/10 -: 2 :-
4. Section 44 of the Kerala Revenue Recovery Act reads thus:
“44. Effect of engagements and transfers by the defaulter:-
(1) Any engagement entered into by the defaulter with any one in
respect of any immovable property after the service of the written
demand on him shall not be binding upon the Government.
(2) Any transfer of immovable property made by a defaulter
after public revenue due on any land from him has fallen in arrear,
with intent to defeat or delay the recovery of such arrear, shall not
be binding upon the Government.
(3) Where a defaulter transfers immovable property to a
near relative or for grossly inadequate consideration after public
revenue due on any land from him has fallen in arrear, it shall be
presumed until the contrary is proved, that such transfer is made
with intent to defeat or delay the recovery of such arrear, and the
Collector or the authorised officer may, subject to the order of a
competent Court, proceed to recover such arrear of public revenue
by attachment and sale of the property so transferred, as if such
transfer has not taken place:
Provided that, before proceeding to attach such property,
the Collector or the authorized officer shall-
(i) give the defaulter an opportunity of being heard; and
(ii) record his reasons therefor in writing.
Explanation:- For the purposes of tis section, “near relative”
includes husband, wife, father, mother, brother, sister, son,
daughter, step son, step daughter, uncle, aunt, son-in-law,
daughter-in-law, brother-in-law, nephew or niece of the transferor.”
Going by the same, after the default in payment of arrears of public
revenue, transfer of immovable property concerned shall not be
binding upon the Government if the same is with the intend to defeat
or delay the recovery of such arrears of public revenue. If such
transfer is not binding on the Government, as rightly pointed out by
the learned Government Pleader, this Court cannot issue a
mandamus to a servant of the Government to effect mutation of the
property in the name of the transferee. Further, clause 7(2)(ii) of the
W.P.C. No. 6248/10 -: 3 :-
Transfer of Registry Rules reads thus:
"(7) (1) xx xx xx
(i) xx xx xx
(ii) The Village Officer furnishing the required details shall
also certify in the statement in Form ‘A’ whether the lands involved
therein are owned by Scheduled Castes or Scheduled Tribes and
whether the transfer of registry is in favour of the same
community. It shall also be ascertained and reported whether
there is any prohibition in the original document against alienation
of the property by the transferor or his predecessor in interest.
Village Officers should certify in Form ‘A’ Statement to the effect
that the property is not pledged as security for loans etc., and it
has not been attached by Government.”
That is also an indication which would go to show that if the property,
in respect of which mutation is prayed for, is pledged as security for
loans etc., and attached by the Government, mutation cannot be
effected in respect of that property.
In the above circumstances, the petitioners are not entitled to
the reliefs prayed for and accordingly the writ petition is dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/