Edattayil Mary Thomas and Others v. The District Collector, Civil Station, Kannur; The Tahsildar, Taluk Office, Payyanur; The Village Officer, Kuttur; State of Kerala represented by Secretary to Government, Revenue Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** ## **WP(C).No. 1187 of 2019** ## **PETITIONERS:** - **1 EDATTAYIL MARY THOMAS, AGED 77 YEARS W/O. THOMAS, AGRICULTURIST, RESIDING AT EDATTAYIL HOUSE,P.O.KUTTUR, KANNUR 670 306** - **2 EDATTAYIL JOHNY, AGED 55 YEARS S/O. THOMAS, AGRICULTURIST, RESIDING AT EDATTAYIL HOUSE, P.O., KUTTUR, KANNUR 670 306** - **3 EDATTAYIL BABU THOMAS, AGED 51 YEARS, S/O.THOMAS,AGRICULTURIST, RESIDING AT EDATTAYIL HOUSE,P.O.KUTTUR, KANNUR 670 306** - **4 EDATTAYIL JOSE, AGED 32 YEARS, S/O. THOMAS, AGRICULTURIST, RESIDING AT EDATTAYIL HOUSE, P.O.KUTTUR,KANNUR 670 306** - **5 MAMBALLIL JOHN,AGED 50 YEARS S/O. MATHAYI,AGRICULTURIST, KOOVAPPA, KUTTUR, KANNUR 670 306.** ## **BY ADV. SRI.MAHESH V RAMAKRISHNAN** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR CIVIL STATION, KANNUR 670 002** - **2 THE TAHSILDAR, TALUK OFFICE, PAYYANUR 670 141.** - **3 THE VILLAGE OFFICER, KUTTUR 670 306** **WP(C).No. 1187 of 2019** **2** **4 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT , REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **SRI.K.J.MOHAMMED ANZAR, SPL.GOVT.PLEADER(REVENUE)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 1187 of 2019** **3** ## **ALEXANDER THOMAS, J.** **=========================== W.P(C)No.1187 of 2019** **============================** Dated this the 15[th] day of January, 2019 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: - _“i) To issue a Writ of Mandamus or any other appropriate Writ, order or direction, directing the 3[rd] respondent to accept basic of the respective property of the petitioners covered by Exts.P1 to P4 & P9 title deeds;_ - _ii) To issue a Writ of Certiorari or any other appropriate Writ, order or direction, to call for documents culminated in Ext.P16 & P17 orders and to quash the same;_ - _ii) To award the cost of these proceedings to the petitioner; and_ - _iii) To grant such other and further reliefs as this Hon'ble Court may deed fit and proper in the facts and circumstances of the case”._ 2. Heard Sri.Mahesh V.Ramakrishnan learned counsel appearing for the petitioners and Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) appearing for the respondents. 3. According to the petitioners, they are in absolute ownership, possession and enjoyment of the respective properties covered by Exts.P1 to P4 and P9 registered title deeds respectively. The basic tax of the respective properties have been paid earlier by their respective **WP(C).No. 1187 of 2019** **4** predecessors/owners of the properties. Ext.P6 is the basic land tax receipt issued in respect of the properties covered by Exts.P1 to P4 and Ext.P12 is the basic land tax receipt in respect of the property covered by Ext.P9. It is stated that residential houses are situated in the said property, having electricity connection as well as various improvements also have been made in the said properties. Though the properties have been duly mutated and basic land tax have been accepted from the respective predecessors of the petitioners, mutation and land tax are not been accepted from the petitioners by the respondents more particularly respondents 2 and 3, in spite of various request in that regard. As per Ext.P14 proceedings dated 09.06.2014, the Commissioner for Land Revenue, who is the head of the department has issued directions in the matter of provisional acceptance of basic land tax subject to further enquiry or result of court cases, if any, etc. A reading of Ext.P14 proceedings issued by the Commissioner of Land Revenue would make it clear that the said decision reflected therein has been rendered on the basis of the joint decision making process in that regard effected by the Hon'ble Minister for Revenue, Additional Chief Secretary to Government in the Revenue Department, and the Commissioner for Land Revenue. In spite of the same the 3[rd] respondent Village Officer **WP(C).No. 1187 of 2019** **5** has refused to accept basic land tax in respect of the above said properties of the petitioners. Thereupon the petitioners 1 to 4 through their assignor, Sri.Edattayil Thomas (husband of the 1[st] petitioner and father of petitioners 2 to 4) and the 5[th] petitioner had approached the Taluk Legal Service Committee (TLSC), Taliparamba, seeking redressal of their grievances. The said Taluk Legal Service Committee constituted under the provisions of Legal Service Authorities Act, 1987 has issued Ext.P14 proceedings whereby the 1[st] respondent has been directed to accept basic land tax in respect of the properties concerned in the light of Ext.P14 directions issued by the above said higher functionaries of the Government in the Revenue Department. But still the 3[rd] respondent has taken an adamant stand and has issued the impugned Ext.P16 order dated 02.03.2018 on the mere ground that the formal request in that regard on behalf of the petitioners was made by the above said Thomas. The said Thomas is the husband of the 1[st] petitioner and father of the petitioners 2 and 4 and who is also happens to be the assignor of the properties of the petitioners 1 to 4. There after, the petitioners were again constrained to approach the 2[nd] respondent -Tahasildar, who has also now rejected the request to accept basic land tax as per Ext.P17 on entirely new ground that the land is a surplus land for which land ceiling **WP(C).No. 1187 of 2019** **6** proceedings have been effected etc., and further that a civil suit as O.S.151 of 2009 is pending on the file of the Sub Court, Payyannur, etc. 4. Section 3(3) of the Kerala Land Tax Act 1961 which reads as follows. “ _3. Definitions.- In this Act, unless the context otherwise requires,-_ - _(1) xxx xxx xxx (2) xxx xxx xxx_ ## _[(3) “land holder” means,-_ - _(a) in relation to any land held by cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964), such cultivating tenant;_ - _(b) in relation to any land in the possession of a Kanam tenant as defined in the Kanam Tenancy Act, 1955 (XXIV of 1955) such kanam tenant;_ - _(c) in relation to any land which has not been surveyed and is not held by a cultivating tenant referred to in sub-clause (a), the proprietor of such land;_ - _(d) in relation to any other land, the registered holder for the time being of such land, and includes his legal representatives and assigns and any person who under any law for the time being in force is liable for the payment of public revenue due in respect of the land held by him].”_ 5. In the instant case it is not beyond dispute that the properties have been duly mutated and basic land tax accepted from the predecessor/owner of the properties concerned. Therefore, the said predecessor is the registered land holder as understood in Clause (d) of Section 3(3) read with Rule 4 of the Kerala land Tax Rules 1972. The **WP(C).No. 1187 of 2019** **7** instant case now, said predecessor has transferred the properties concerned to the respective petitioners as per Exts.P1 to P4 registered gift deeds and Ext.P9 registered sale deed. Therefore, the respective petitioners are the assignees of the respective registered land holder concerned in respect of the respective properties concerned. Hence though clauses (a), (b) and (c) of Section 3(3) are not actually attracted, the case in hand would straight away fit in to the requirements of the clause (d) of section 3(3). Since the petitioners are the assignees of the registered land holder as conceived under section 3(3) (d) such assignees would stand in the shoe of the “land holder” as understood in section 3(3) of the Kerala Land Tax Act. Section 5(2) of the Kerala Land Tax mandates that the competent revenue officials like the respondents 1 to 3 are legally obliged to collect land tax from the respective land holder concerned as understood in section 3(3). If the said competent revenue officials fail to collect land tax from such land holder as understood in section 3(3), that will amount to cause serious loss of revenue to the public exchequer and therefore, it would amount to abdication and dereliction of the duties which is nothing but illegal and ultra wires and accordingly, it is so declared and ordered. Further Section 4 (2) of the Kerala Land Tax mandate that the settlement of the **WP(C).No. 1187 of 2019** **8** revenue as conceived in the said act would override any of the provisions made in any other provisions and therefore the provisions of the Kerala Land Tax Act and Rules framed thereunder would override provisions like Transfer of Registry Rules 1966, which is only non statutory guideline. Rule 4 of the Kerala Land Tax Act, 1972 envisages that every village office and Taluk office should maintain a Basic Tax Register (BTR). Therefore where the registered land holder assigns their property, then the assignee would become the land holder as under Section 3(3), in which case the competent revenue officials will have to find out such land holders and then collect land revenue from them and thereafter should make necessary entries in the Basic Tax Register as conceived in Rule 4 Kerala and Tax Rules 1972 etc. So also, it is now trite that the limited and summary enquiry conceived under the Transfer of Registry Rules is only for the limited purpose of fiscal administration, as envisaged in Rule 18 of the Transfer of Registry Rules and will not amount to creation or extinguishment of title which has to be decided independently by Civil Courts and any mutation so granted will have to be revised from time to time consequent to such judicial verdicts. It is also well settled by a catena of Rulings as in _**Thulasibhai v. State of Kerala**_ in 2010 (4) KLT 215, _**Nevin Raju v. S. Basheer**_ **WP(C).No. 1187 of 2019** **9** _**and others 2015 (3) KLJ 197**_ that mere pendency of attachment proceedings, revenue recovery proceedings and Civil Courts etc as in the instant case will not be any justification for the competent revenue officials from refusing to accept basic land tax as the Rules do not interdict the land tax shall not be collected due to such pendency. If land ceiling proceedings are pending as against property concerned, then acceptance of land tax not in any manner prejudiced by such proceedings and mere pendency of such land ceiling proceedings on the file of the Taluk Land Board concerned also will not amount to any justification to enable the competent revenue officials to refuse the acceptance of basic land tax. If the competent revenue officials refuse to accept basic land tax inspite of the satisfaction of the necessary ingredients as envisaged in section 3(3) and section 5(2) of the Kerala Land Tax Act, then it would amount to dereliction of the statutory duties and responsibilities. Mere acceptance of the basic land tax or mutation will not confer title and any proceedings as in attachment revenue recovery proceedings, civil proceedings, land ceiling proceedings etc. will not in any manner prejudiced by mutation and acceptance of the basic land tax. **WP(C).No. 1187 of 2019** **10** 6. Accordingly, impugned Exts.P16 and P17 will stand as set aside. The 3[rd] respondent-Village officer will immediately take up the request made by the petitioners for grant of mutation, transfer of registry and basic land tax in respect of the above said properties concerned and after affording a reasonable opportunity of being heard to the petitioners, will consider the said request of in the light of the above said findings and orders may find this Court herein above and will grant the said request if it is otherwise in order. It appears that the application for mutation and transfer of registry etc., has been submitted by the petitioners long ago and therefore, if those papers are immediately not traceable then the petitioners may immediately file their request for grant of mutation, transfer of registry and acceptance of basic land tax in respect of the properties concerned in a proper manner before the 3[rd] respondent who will then consider the said request as directed herein above. The orders should be passed by the 3[rd] respondent- Village Officer without much delay preferably within a period of six weeks from the date of submission of such application along with such copy of judgment. It is make clear that the endeavor of the competent revenue officials like respondent 2 and 3 should not be to find out “loop holes' and “grounds” to some how or other to refuse the **WP(C).No. 1187 of 2019** **11** basic land tax but to ensure that they fulfill their solemn duties and responsibilities cast under the Kerala Land Tax under Kerala land tax rules. It is hoped and expected that the competent revenue officials concerned would rise up to the occasion and fulfill the heavy responsibilities cast on their shoulders to collect land revenue as stipulated by the legislature through the enactment of the Kerala Land Tax and the Rules framed thereunder. With these observations and directions the above said writ petition (civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** mpm **WP(C).No. 1187 of 2019** **12** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGD GIFT DEED NO. 2529/2000, S.R.O. MATHAMANGALAM EXECUTED BY EDATTAYIL THOMAS TO EDATTAYIL MARY.** **EXHIBIT P2 TRUE COPY OF REGD GIFT DEED NO. 2526/2000 S.R.O. MATHAMANGALAM EXECUTED BY EDATTAYIL THOMAS TO EDATTAYIL JOHNY.** - **EXHIBIT P3 TRUE COPY OF THE REGD GIFT DEED NO. 2527/2000 S.R.O. MATHAMANGALAM EXECUTED BY EDATTAYIL THOMAS TO EDATTAYIL BABU THOMAS.** - **EXHIBIT P4 TRUE COPY OF THE REGD GIFT DEEDS NOS 2528/2000, S.R.O. MATHAMANGALAM EXECUTED BY EDATTAYIL THOMAS TO EDATTAYIL JOSE.** - **EXHIBIT P5 TRUE COPY OF THE BUILDING TAX RECEIPT DATED 1.11.2016 ISSUED BY THE ERAMAM KUTTUR GRAMA PANCHAYATH** **EXHIBIT P6 TRUE COPY OF THE BASIC TAX RECEIPT DATED 29.7.1994 ISSUED BY THE KUTTUR VILLAGE OFFICER TO THE PETITIONER** - **EXHIBIT P7 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 25.3.1994 ISSUED BY THE VILLAGE OFFICER, KUTTUR** - **EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 22.01.2018 ISSUED BY THE KSEB** - **EXHIBIT P9 TRUE COPY OF THE REGD SALE DEED NO. 618 OF 1997, S.R.O. MATHAMANGALAM EXECUTED BY PARAMBIL MADHUSOODHANAN TO THE 5TH PETITIONER** **EXHIBIT P10 TRUE COPY OF THE CERTIFICATE OF PURCHASE NO. 67 OF 1979, NO.1 LAND TRIBUNAL, PAYYANUR.** - **EXHIBIT P11 TRUE COPY OF THE CERTIFICATE DATED 4.10.2017 ISSUED BY THE ERAMAM KUTTUR GRAMA PANCHAYATH** **WP(C).No. 1187 of 2019** **13** **EXHIBIT P12** **TRUE COPY OF THE BASIC TAX RECEIPT DATED 6.6.1982 ISSUED BY THE KUTTUR VILLAGE OFFICER TO THE THEKKE KOTTARATHYIL JOHNY** **EXHIBIT P13** **TRUE COPY OF THE RECEIPT DATED 13.09.2018 ISSUED BY THE KSEB TO THE PETITIONER** **EXHIBIT P14 TRUE COPY OF THE ORDER DATED 9.6.2014 ISSUED BY THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM.** **EXHIBIT P15** **TRUE COPY OF THE ORDER DATED 10.02.2018 ISSUED BY LOK-ADALATH, TALIPARAMBA IN PL NO.5396/14** **EXHIBIT P16 TRUE COPY OF THE ORDER DATED 2.3.2018 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P17 TRUE COPY OF THE ORDER DATED 23.8.2018 ISSUED BY THE SECOND RESPONDENT** **RESPONDENTS' EXHIBITS : NIL** //TRUE COPY// PA TO JUDGE