IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 26792 of 2007(M)
1. V.P. MAHESH, S/O. O.T. PILLAI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. DISTRICT COLLECTOR, PATHANAMTHITTA.
3. TAHSILDAR,
4. VILLAGE OFFICER,
For Petitioner :SRI.R.S.KALKURA
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :20/11/2007
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 26792 OF 2007 M
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Dated this the 20th day of November, 2007
J U D G M E N T
Petitioner had purchased a property having an extent of
7.25 ares in a public auction conducted by the South Indian Bank
Ltd, Thiruvalla Branch, to which the property was mortgaged.
Ext.P1 is the sale certificate issued by the Authorised Officer of
the Secured Creditor Bank. Petitioner submits that thereafter, he
had applied to the 3rd respondent-Tahsildar to effect mutation of
the property in his name and thereupon Tahsildar obtained legal
opinion from the Additional Government Pleader, who opined that
if there is no appeal pending against the order of the Debts
Recovery Tribunal, mutation could be effected.
2. In view of this, a certificate from the Debts Recovery
Tribunal that no appeal was pending was directed to be produced
and the petitioner made a request to the Registrar, Debts
Recovery Tribunal, Ernakulam for a certificate. To this, he got
Ext.P6 reply stating that there is no provision to issue a
certificate as required by the petitioner. However, the Bank
issued Ext.P5 letter stating that there is no appeal pending in
respect of the property covered by Ext.P1 sale certificate. Even
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thereafter, mutation was not effected and hence this writ petition
was filed praying for directing respondents 3 and 4 to effect
mutation in respect of the property covered by Ext.P1 sale
certificate.
3. On behalf of the respondents, Government Pleader
entered appearance and 3rd respondent states that an application
for effecting mutation in his name was made by the petitioner to
the 4th respondent. In para 4 of the counter affidavit, he has
given a list of 13 civil cases, which are pending in the Munsiff’s
Court, Thiruvalla, Sub Court, Thiruvalla and Sub Court,
Kottayam. It is stated that in some of these cases, attachment
orders have also been passed by the Civil Court. According to
the 3rd respondent, it is only on account of the pendency of these
litigations that they were not in a position to effect mutation of
the property. It is also stated that the Bank took possession of
the property without the knowledge of the 2nd respondent, as
stipulated in Section 13 of the Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act,
2002. On going through the said provision, I do not find any
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obligation on the part of the Bank to have taken possession only
with the knowledge of the respondents.
4. Counsel for the petitioner only sought for a direction to
the 3rd respondent to consider the application made by the
petitioner for effecting mutation in his name on the strength of
Ext.P1. He would submit that the 3rd respondent is bound to take
a decision on the application made by him.
5. The petitioner submits that the 3rd respondent has not
passed an order on the application made by him for effecting
mutation in his name. However, counter affidavit discloses that
the application was in fact made to the 4th respondent-Village
Officer.
6. The fact that certain civil cases are pending in respect
of the property with interlocutory orders including attachment, it
need not stand in the way of the respondents 3 and 4 from
considering the application filed by the petitioner for mutation. As
rightly pointed out by the counsel for the writ petitioner, the
procedure in this behalf is laid down in the Transfer of Registry
Rules, 1966. Rule 16 of the said rule provides that even if
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mutation is effected in the name of the petitioner, that will not
affect the legal rights of any person in respect of the lands
covered by the application for carrying out mutation in his favour.
The rule makes it clear that the question of legal rights in respect
of the property is always subject of adjudication by Civil courts
and pattas will be revised from time to time in accordance with
judicial decisions. Therefore, prima facie, it would appear that
inspite of the pendency of the suits before the Civil Courts,
mutation can be effected by the respondents.
7. In the nature of the relief that is sought by the
petitioner, a final adjudication on the permissibility of effecting
mutation in the petitioner’s favour is not called for at this stage.
In terms of the provisions of the rules, 3rd respondent is obliged
to take a decision on the application made by the petitioner for
effecting mutation. Although petitioner has submitted an
application in this behalf immediately after Ext.P1 sale certificate
was issued, admittedly, a decision in this regard has not been
taken. If a decision is taken, which is adverse to the petitioner,
the petitioner has a right to pursue the same before the
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appropriate authorities as per Rule 18 of the Rules. In this case,
it is noticed that according to the 3rd respondent an application
for effecting mutation was received by the 4th respondent.
However, since the application is still pending without orders, and
as the 3rd respondent is the appropriate authority in terms of the
Rules, the 4th respondent can transmit the application of the
petitioner to the 3rd respondent for appropriate orders.
8. Accordingly, I dispose of this writ petition directing
that within three weeks from the date of receipt of a copy of this
judgment, the 4th respondent shall transmit the application for
effecting mutation submitted by the petitioner to the 3rd
respondent. On receipt of the application as directed above, a
final decision in this matter shall be taken by the 3rd respondent
as expeditiously as possible, at any rate within two weeks of
receipt of the application.
Petitioner shall produce a copy of this judgment before the
3rd and 4th respondents for compliance.
ANTONY DOMINIC, JUDGE.
Rp
