Federal Bank Limited vs Tahsildar

Gopinath P., J

The petitioner in W.P.(C)No.26243 of 2023 purchased an extent of 20.02 ares of land in an auction conducted by the Debt Recovery Tribunal, Ernakulam and in furtherance of the final order in O.A.No.53/2012 in the matter of Federal Bank Limited v. P.V. Antony and another. The sale certificate was also issued in favour of the petitioner. However, mutation is not being effected on the ground that as per the Basic Tax Register, the property is described as “Tharishu”. Parties and exhibits are hereinafter referred to as they appear/are filed in W.P. (C)No.26243 of 2023.

Therefore, the petitioner and the Federal Bank which is the petitioner in the connected W.P.(C)No.19923 of 2023 have approached this Court essentially seeking the completion of proceedings for effecting mutation in favour of the petitioner within a time frame to be fixed by this Court.

The learned counsel appearing for the petitioners in these cases would submit with reference to the encumbrance certificate produced as Ext.P9 that the said encumbrance certificate which is for the period from 01.01.1989 to 10.03.2023 would show that the property was subject matter several transactions from 1989 onwards. It is submitted that even assuming that the Government has any semblance of right over the property, since for over thirty years, the property has been owned and enjoyed by the several persons, as can be seen from Ext.P9, it is not proper on the part of the authorities to refuse mutation in favour of the petitioner. It is also submitted that mutation had been effected and tax has been paid in the name of the previous owners without any objection.

The learned Government Pleader would submit that mutation was refused on the ground that the property is described in the Basic Tax Register as “Tharishu”. It is submitted that “Tharishu” refers to the Government and the property cannot be mutated in favour of the petitioner. It is submitted the fact that mutation had been effected and tax has been accepted from the previous owners, no ground to hold that the petitioner is entitled to mutation in his favour.

Having heard the learned counsel appearing for the petitioners in these cases and the learned Government Pleader, I am of the view that the petitioners are entitled to succeed. The reasons which compel me to make such a view are the following;

(1) A reference to Ext.P9 in W.P.(C)No.26243 of 2023 would indicate that atleast from the year 1989, the property which is subject matter of the sale certificate in favour of the petitioner has been subject matter of several transactions. More than thirty years have passed and therefore, prima facie, it may not be possible for the authorities to say at the distance of time that the property in question was Government property as per the Basic Tax Register.

(2) The property was mutated in favour of the predecessors in interest of including in favour of the mortgager against whom proceedings were initiated by the Federal Bank, (see Ext.P5 tax receipt, Ext.P6 location certificate and Ext.P7 possession certificate) Ext.P8 tax receipt is stated to be in favour of the predecessors in interest of the defendant in O.A.No.53/2012.

(3) The right of the Government, if any, proceed against the property in question can be reserved, making it clear that I have not expressed any opinion against the Government.

In the result, these writ petitions are disposed of. The second respondent in W.P.(C)No.26243 of 2023 is directed to effect mutation in respect of the property covered by Ext.P1 sale certificate in favour of the petitioner in W.P.(C)No.26243 of 2023. However, it is made clear that mutation in favour of the petitioner in W.P.(C)No.26243 of 2023 will not prejudice to the right of the Government to initiate legal action against the properties in question, if such action is permissible, in terms of the law.