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2019 DIGILAW 64 (KER)

Shylaja v. Deputy Collector (Devaswom)

2019-01-18

ALEXANDER THOMAS

body2019
JUDGMENT : ALEXANDER THOMAS, J. 1. The prayers in the above writ petition (Civil) are as follows: “i. issue a writ of mandamus or other appropriate writs directions or orders directing the respondent to furnish a certified copy of order in proceeding No.1974/1975 before D7 Collectorate Land Tribunal, Thrissur and purchase certificate No.11093 of 1976 forthwith; ii. issue a writ of mandamus or other appropriate writs directions or orders directing the respondent to reconstruct the files pertaining to the order in proceeding No.1974/1975 before D7 Collectorate Land Tribunal, Thrissur and purchase certificate No.11093 of 1976 and issue copy to the petitioner if the records are not traceable.” 2. Heard Sri. R. Harishankar, the learned counsel for the petitioner and Sri. Saigi Jacob Palatty, the learned Senior Government Pleader appearing for the respondents. 3. According to the petitioner, she is in ownership, possession and enjoyment of 0.2653 hectares and 0.1590 hectares of land in resurvey No. 348/5 and resurvey No. 348/4 respectively of Vadakkancherry-1/Aayakkad Village, Alathur Taluk, Palakkad District as per Ext.P1 registered sale deed No.4075/1 of 2010 dated 10.11.2010 of SRO Vadakkancherry. The property covered by Ext.P1 registered sale deed is said to be a larger extent of property which was held by one Mary @ Marykutty and her husband Antony. After the death of the said Antorny, the said Mary and her daughter, who are the legal heirs of the deceased Antorny had partitioned the said property as per Ext.P2 registered sale deed No.417/2008 dated 6.2.2008 of SRO Vadakkancherry and A schedule of Ext.P2 partition deed was duly allotted to the said Mary, who in turn had sold the said property to the petitioner as per Ext.P1 registered sale deed. Earlier the said Mary and her husband Antony had obtained ‘verupattom’ rights of the subject property as per Ext.P3 sale deed No.629/1973. It is thereafter, Mary and her husband Antony had applied for issuance of purchase certificate before the 1st respondent Land Tribunal, (Devaswom), Thrissur, presided over by the Deputy Collector, as per proceedings No.1974 /1975, which has duly granted the purchase certificate No.11093/1976. The factum regarding to the said purchase certificate issued to Mary and her husband Antony has been duly recited in the internal page No.3 of the Ext.P2 registered partition deed. The factum regarding to the said purchase certificate issued to Mary and her husband Antony has been duly recited in the internal page No.3 of the Ext.P2 registered partition deed. That at the time of conveyance of the property as per Ext.P1, the petitioner was not handed over the original of the said purchase certificate by his vendor, but what was sold to the petitioner as per Ext.P1 was only part of the larger extent of property covered by Ext.P2 partition deed. Later, the petitioner had made repeated attempts to get atleast a certified authenticated copy of the purchase certificate from the 1st respondent and it could not succeed as can be seen from Exts.P4 and P6, wherein it is stated by the 1st respondent that the request for issuance of certified copy of the said purchase certificate cannot be allowed as the original records are not traceable. Thereafter, the petitioner had filed Ext.P5 appeal before the appellate authority concerned as against Ext.P4 rejection order and the appellate authority has also taken the stand in the impugned Ext.P6 order dated 2.2.103 that the request for issuance of certified copy of the purchase certificate is not admittable in view of the non-availability of the records. It is in the light of these factual averments the petitioner has filed the instant writ petition with the aforementioned prayers. 4. The 1st respondent has filed a counter affidavit date 7.9.2013 in this case and paragraphs 4 to 7 of the said counter affidavit read as follows: “4. It is submitted that as per the application under Right to Information Act 2005, Advocate Rammohan applied for the copy of purchase Certificate No.11093/1976 in SM/OA 1974/75 on 06.12.2012. The 38 years old file was searched in the record room but could not be traced out. The said fact has already been intimated the party by the State Public Information Officer and Junior Superintendent (L.R.), Collectorate, Thrissur vide Exhibit P4 order. Against this Advocate P. Rammohan filed an appeal Under Section 19 of the Right to Information Act, 2005, before the Deputy Collector (LR), Collectorate, Thrissur. Considering the appeal petition, the appeal authority and the Deputy Collector (LR), Thrissur directed the Record Keeper to search the file again in the records room. Repeated searches were made but the above said file could not be traced out. The said fact was intimated vide Exhibit P6 order. 5. Considering the appeal petition, the appeal authority and the Deputy Collector (LR), Thrissur directed the Record Keeper to search the file again in the records room. Repeated searches were made but the above said file could not be traced out. The said fact was intimated vide Exhibit P6 order. 5. It is submitted that there were many Land Tribunal in Thrissur and they were abolished one by one. The entire files were transferred to the office of the Deputy Collector, Land Tribunal No.III and said office also was also abolished in the year 1998. The records of the defunct officer of the Deputy Collector, Land Tribunal No. III, Thrissur was transferred and attached to the office of the Deputy Collector (LR), Thrissur. This office contains more than 3 lakhs of case files and many of the files were destroyed. Additional staff were provided to arrange the record room and that the process is continuing. In spite of the above condition, the above said file was searched in the record room but could not be traced out. There is no willful laches or negligence from the part of this respondent. 6. It is submitted that in Exhibit P2 the name and address of the Land Tribunal is not clearly mentioned and the nature of file whether it is OA or SM is also not mentioned. Inspite of these irregularities the file was searched in the record room but could not be traced out. 7. It is respectfully submitted that in view of the above facts this respondent could not issue Purchase Certificate to the petitioner and records area also not available in the office to reconstruct the file.” 5. From a reading of the pleadings in the said counter affidavit of the 1st respondent, it can be seen that, according to the respondents, the original files are irretrievably lost and it is virtually impossible for them to even reconstruct the file, and therefore, under the circumstances, it is not possible to grant the certified copy of the said purchase certificate etc. 6. 6. After having heard both sides, this Court is of the considered view that the prayer as now sought for in this writ petition for issuance of mandamus to direct the 1st respondent to grant the certified copy of the purchase certificate may not be a feasible option as it would amount to direct the 1st respondent to do rather impossible task. This the Court would say because the petitioner also does not have any serious objections to the factual averments in the said counter affidavit of the 1st respondent that the original files of the purchase certificate are irretrievable lost. Moreover, the original Land Tribunal, Thrissur, which existed in early 1970’s was abolished and the entire files were transferred to the office of the Deputy Collector, Land Tribunal No.III, which was also abolished in 1998 and the records of the defunct office of the Land Tribunal No.III, Thrissur were transferred and attached to the Office of the Deputy Collector (Land Records), Thrissur, which office contains more than three lakhs of case files and many other files have been destroyed. Despite very earnest search, the 1st respondent could not trace out the original files. Merely because it is impossible for the 1st respondent to reconstruct the file of the original purchase certificate, does not necessarily mean that it is the end of the road of the petitioner. Supposing in a case where the person, who was originally entitled for the grant of purchase certificate had assigned the property to the third party like the petitioner and the said original assigner had also died, then certainly, the assignee could make a request for initiation of suo motu proceedings and for consideration of the request for grant of purchase certificate as envisaged in Section 72K of the Kerala Land Reforms Act, 1963 and if in such a case, enquiries conducted by any competent revenue officials reveal that the predecessor-in-interest of the party was otherwise eligible and entitled for successfully prosecuting the suo motu proceedings of this nature and to secure a purchase certificate, then certainly such assignee could take recourse to such a remedy. Therefore, if in a case where the purchase certificate was not issued, such a right is available to the predecessor concerned, then certainly such a right could also be claimed by the person like the petitioner, whose case is that her predecessor had validly obtained the purchase certificate, which according to the 1st respondent cannot be ascertained now due to destruction or non-availability of the original files of that period. Therefore, the implied stand of the 1st respondent as if no relief whatsoever could be granted to a person like the petitioner in the facts and circumstances of this case, is only to be held as not correct and tenable. 7. Now it is submitted by the learned Senior Government Pleader that the territorial jurisdiction in respect of the above matter is now divested from the 1st respondent and is vested with the 2nd respondent Land Tribunal (Devaswom), Palakkad, where the subject property is situated. 8. Accordingly, it is ordered that the petitioner may make an appropriate application for grant of purchase certificate for the subject property on the premise that her predecessor was eligible and entitled for the grant of purchase certificate etc. and if such an application is filed, the 2nd respondent Land Tribunal will ensure that an appropriate enquiry is conducted by the competent revenue official like the 3rd respondent with due prior notice to the petitioner. In that enquiry process, the petitioner may also make available necessary materials in support of her pleas and the 3rd respondent may furnish a report before the 2nd respondent in the matter with copy to the petitioner. Thereafter, the 2nd respondent Land Tribunal will take a decision in the matter of registration of suo motu proceedings and then to issue notice to the petitioner and to the predecessor concerned as well as the landlord concerned and then take a considered decision on the request for issuance of purchase certificate. Since the 3rd respondent may conduct an enquiry and may also ascertain the legal representative of the said Mary and her deceased husband Antony is willing, so that notices could also be issued to such interested persons. The entire process in that regard should be duly completed by respondents 2 and 3 without much delay preferably within a period of six months frm the date of production of a certified copy of this judgment. The entire process in that regard should be duly completed by respondents 2 and 3 without much delay preferably within a period of six months frm the date of production of a certified copy of this judgment. Respondents 2 and 3 will bear in mind the peculiar facts and circumstances of this case and should ensure that the effective consideration of the said request is made and finalized within the said time line. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.