Jithesh O.S. and Others v. District Collector, Ernakulam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 5TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940** ## **WP(C).No. 3416 of 2019** ## **PETITIONERS:** - **1 JITHESH O.S., AGED 42 YEARS, SON OF SIVADAS, OZHUKKATHU PARAMBIL VEETTIL, MATTUMMAL DESOM, CHERANALLOOR VILLAGE, PIN-682 034.** - **2 KUNJAMMA ANTONY,AGED 64 YEARS, WIFE OF ANTONY, KANNAM PARAMBIL VEETTIL, MATTUMMAL DESAM, CHERANALLOOR VILLAGE, PIN-682 034** - **3 PREEMA SHINE, AGED 33 YEARS, WIFE OF SHINE, KALLARAKKAL VEETTIL, MATTUMMAL DESOM, CHERANALLOOR VILLAGE, PIN-682 034** - **4 M.B. SHAJI, AGED 50 YEARS, MANKKATHAZHATHU VEETTIL, MATTUMMAL DESAM, CHERANALLOOR VILLAGE, PIN-682 034** - **5 THOMAS JOSEPH, AGED 67 YEARS, SON OF JOSEPH, KANNAMPARAMBIL VEETTIL, MATTUMMAL DESAM, CHERANALLOOR VILLAGE, PIN-682 034** - **6 JACOB JOSEPH, AGED 60 YEARS, SON OF JOSEPH, KANNAMPARAMBIL VEETTIL, MATTUMMAL DESAM, CHERANALLOOR VILLAGE, PIN-682 034** - **7 JOSEPH ANTHA,AGED 64 YEARS, PADAPPURAKKAL VEETTIL, MATTUMMAL DESAM, CHERANALLOOR VILLAGE, PIN-682 034** - **8 RUBY JOSEPH, AGED 56 YEARS, WIFE OF JOSEPH, PADAPPURAKKAL VEETTIL, MATTUMMAL DESAM, CHERANALLOOR VILLAGE, PIN-682 034** - **9 RAIMOND C.J., AGED 22 YEARS, CHAKKALAKKAL VEETTIL, MATTUMMAL DESAM, CHERANALLOOR VILLAGE, PIN-682 034** - **BY ADVS.SRI.T.P.SAJAN SRI.M.MOHAMED NAVAZ** **WP(C).No. 3416 of 2019** ## **-:2:-** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, O/O. OF THE DISTRICT COLLECTOR, ERNAKULAM, ERNAKULAM, PIN-682 020** - **2 THE REVENUE DIVISIONAL OFFICER, O/O. OF THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, KOCHI, PIN-682 021** - **3 THASILDAR, O/O. OF THE THAHASILDAR, KANAYANOOR TALUK, ERNAKULAM PIN-682032.** - **4 THE VILLAGE OFFICER, O/O. OF THE VILLAGE OFFICER, CHERANELLOOR VILLAGE, CHERANELLOR P.O., PIN-682034.** - **5 JERRY PERERA, SON OF LAZER FERERA, THOPPIL ST. ANTONY'S BUNGALOW, VARAPUZHA LANDING P.O., PIN-683 517 VARAPPUZHA VILLAGE.** - **6 HARRISON PERERA, ST. ANTONY'S BUNGALOW, THOPPIL, EDAMPADAM, VARAPPUZHA, VARAPUZHA LANDING P.O., PIN-683 517.** **SRI.K.J.MOHAMMED ANZAR, SPL.GOVT.PLEADER( REVENUE)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 3416 of 2019** ## **-:3:-** # **ALEXANDER THOMAS, J.** ## **===========================** ## **W.P(C)No.3416 of 2019** **===========================** Dated this the 5[th] day of February, 2019 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: - _1) To issue a writ of mandamus or any other appropriate writ order or direction, directing the 4[th] respondent to accept the basic tax in respect of the property belonging to the petitioners situate in Resurvey no.139/4, 139/23 and in Resurvey No.139/12, in Block No.4 of Cheranalloor Village which properties were comprised in old survey Nos.130/2, 131/5, 1264, 1267 of Cheraneloor Village and issue tax receipt._ - _2) To issue a writ of mandamus or any other appropriate writ order or direction, directing the 4[th] respondent to accept basic tax in respect of the property belonging to the petitioners and issue possession certificate in respect of the respective properties to the petitioners._ - _3) To issue a writ of mandamus or any other appropriate writ order or direction, directing the 1[st] respondent to consider and pass orders on Ext P12 within a time frame and direct the 4[th] respondent to accept tax in respect of their properties the respondent to accept basic tax in respect of the property belonging to the petitioners and issue possession certificate in respect of the respective properties to the petitioners._ - _4) To issue such other appropriate writ order or direction as this Hon'ble Court deems just and fit in the circumstance of the case.”_ 2. Heard Sri.T.P.Sajan, learned counsel appearing for the petitioners and Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) appearing for respondents 1 to 4. In the nature of the orders proposed to be passed in this Writ Petition, notices to contesting **WP(C).No. 3416 of 2019** ## **-:4:-** respondents 5 & 6 will stand dispensed with. 3. The petitioners are essentially aggrieved by the refusal on the part of the 4[th] respondent-Village Officer in accepting basic land tax, in respect of their respective subject properties and also in the inordinate delay in consideration of Ext.P-12 representation dated 08.12.2018 filed by the petitioners before the 1[st] respondent-District Collector. In Ext.P-12 representation, the petitioners have pointed out before the 1[st] respondentDistrict Collector that the delay on the part of the 4[th] respondent-Village Officer in accepting basic land tax is causing serious prejudice to them, inasmuch as they are not being issued the revenue certificates, which are highly necessary for him, to be submitted in respect of their claims for getting financial assistance under the Flood Relief Scheme pursuant to Ext.P-11 Scheme. 4. All the petitioners are residents of Varappuzha Village, Kanayannur Taluk, Ernakulam Revenue District, which has been totally affected by heavy rainfall during the flood and dread, which had occurred in the State in the second week of August, 2018 and all the revenue villages in Ernakulam Revenue District has been declared as heavily affected by the said flood, as per Ext.P-11 Government Order G.O(P)No.04/2018/DMD dated 29.08.2018. Pursuant to the said scheme, various governmental and non-governmental organizations have taken serious efforts to re-construct **WP(C).No. 3416 of 2019** ## **-:5:-** the residential buildings of those who lost their houses during the flood and financial assistance is also being given by the Government as well as other agencies for re-construction of the residential houses. The petitioners have lost their residential buildings and their entire belongings during the said flood and they are eligible to get the financial assistance from the Government, it is averred. But one of the primary conditions for availing such flood relief benefits, declared by the Government is that the party should produce necessary materials to show that they are in possession of land for construction of residential building. For that purpose, the incumbents have to obtain possession certificate and such other related revenue certificates from the competent revenue officials like the 4[th] respondent-Village Officer, even for the very purpose of submitting their application for such assistance. Though the petitioners have consistently approached the 3[rd] respondent-Tahsildar and the 4[th] respondent-Village Officer with the title deed, for remitting basic land tax, in respect of their properties owned by them, the said officials are refusing to accept basic land tax from the petitioners, on the ground that there is some dispute regarding the ownership right of their vendors, who are the predecessors of contesting respondents 5 & 6. The petitioners have purchased the properties on the basis of registered sale deeds. The respective properties purchased by the petitioners 1 to 4 have been duly **WP(C).No. 3416 of 2019** ## **-:6:-** mutated in their name and also basic land tax has been accepted from them as evident from Exts.P-1 to P-4 receipts. Pursuant to the registered sale deeds obtained by the petitioners 5 & 6, they had duly submitted application for mutation and even fee for consideration of transfer of registry of application has also been duly remitted. 5. However, respondents 1 & 2 have refused to mutate the property in the name of petitioners 5 & 6, by stating the purported title disputes involving the predecessor of respondents 5 & 6. Since consistent negative attitude was shown as against the other petitioners, petitioners 7 to 9, have not formally submitted their applications for grant of mutation and acceptance of basic land tax, even though, they have secured registered sale deeds in their favour, in respect of the subject properties. Exts.P-7 to P-9 are the registered sale deeds obtained by the petitioners 7, 8 & 9 respectively. The details of the registered sale deeds obtained by each of the petitioners have also been pleaded meticulously with all material particulars in the Writ Petition (Civil), about which further reference may not be necessary. 6. It appears that mutation granted to the predecessors-in-interest of the respective properties of the petitioners like contesting respondents 5 and 6 and their family members were challenged by certain other persons on the ground that the latter have right of adverse possession in respect of **WP(C).No. 3416 of 2019** ## **-:7:-** a certain portion of the said property. The mutation was duly granted to contesting respondents 5 and 6 and their family members, which was cancelled by the 2[nd] respondent-RDO. This Court as per Ext.P-10 judgment dated 13.8.2018 in WP(C).No.21865/2018 found that the said cancellation of mutation ordered by the 2[nd] respondent-RDO in that case is illegal and ultra vires and set aside the impugned order cancelling the mutation but had ordered that the matter may be referred to the 1[st] respondent-District Collector as an appeal under Rule 19 but had made it clear that the proceedings in question may be treated only as a proposal to cancel the mutation and that the matter could be referred to the 1[st] respondentDistrict Collector wherein he could exercise the powers as an appellate authority under Rule 19 and the 1[st] respondent-District Collector has been directed to consider the entire issues in exercise of the appellate powers to decide as to whether or not the impugned mutation granted in favour of the petitioners in Ext.P-10 WP(C).No.21865/2018 is correct, etc and to decide the matter within a period of 5 months, etc. It is stated that the matter in relation to Ext.P-10 judgment is pending before the 1[st] respondent-District Collector. However the fact of the matter appears that even the cancellation of mutation ordered in case of those petitioners in Ext.P-10 have been set aside by this Court and the respondents have only been given liberty to adjudge the correctness or otherwise the impugned mutation granted to **WP(C).No. 3416 of 2019** ## **-:8:-** them in exercise of the appellate powers of the 1[st] respondent-Collector under Rule 19 of the Transfer of Registry Rules. Therefore it is clear that the mutation granted in favour of those petitioners stands restored due to the setting aside by this Court of the impugned order of the respondents cancelling the mutation granted to them. 7. Without getting into those aspects, it can be seen that it is indisputable that the mutation already granted to the petitioners 1 to 4 have not even been cancelled and is alive and current, until ordered otherwise, in the manner known to law. Therefore there cannot be any reason not to accept basic land tax from petitioners 1 to 4 as of now. Further the application for mutation submitted by petitioners 5 & 6 are pending. Petitioners 7 to 9 have not so far submitted any formal application for grant of mutation or for acceptance of basic land tax. Coming to the facts of this case, it is not in dispute that the respective petitioners have obtained their respective subject properties on the basis of registered sale deeds from the assignors concerned. Hence for the limited purpose of payment of basic land tax for the time being, it can be seen that so long as the petitioners have obtained their properties through registered sale deeds, they would certainly fulfill the definition of “land holder” as **WP(C).No. 3416 of 2019** ## **-:9:-** understood in Clause (d) of Sec.3(3) of the Kerala Land Tax Act. Sec. 3(3) of the Kerala Land Tax Act reads as follows: - _“ 3. Definitions- In this Act, unless the context otherwise requires,_ - _(1) xxx xxx (2) xxx xxx_ - _(3) “land holder” means-_ - _(a) in relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964), such cultiating 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. ”_ 8. Going by the facts of this case, Clauses (a), (b) & (c) of Sec.3(3) may not be attractive. Since the petitioners happen to be the assignees of the previous registered land holders, it appears that all the sale deeds issued in favour of the petitioners herein have been rendered in the year 2016 & 2017 after the grant of mutation to the respective predecessors. The extent of subject properties of the petitioners herein are as follows: |**Sl.**<br>**No.**|**Name**|**Re.Sy.**<br>**No.**|**Extent**|**Extent**|**Sale Deed**<br>**No.**|**Exhibit No.**| |---|---|---|---|---|---|---| ||||**In**<br>**Ares**|**In**<br>**Cents**||| |1|Jithesh O.S.|139/4|3.03|7.487|2869/2016<br>2868/2016<br>2870/2016|P-1 to P-1(b)<br>Tax receipt| |2|Kunjamma<br>Antony|139/23|2.02|4.991|3102/2016|P-2<br>Tax receipt| |3|Preema Shaji|139/23|1.01|2.495|3101/2016|P-3<br>Tax receipt| |4|M.P.Shaji|139/23|1.01|2.495|2737/2016|P-4<br>Tax receipt| **WP(C).No. 3416 of 2019** ## **-:10:-** |5|Thomas Joseph|139/12|1.92|4.744|4241/2016|P-5<br>TR receipt| |---|---|---|---|---|---|---| |6|Jacob Joseph|139/12|1.92|4.744|4239/2016|P-6<br>TR receipt| |7|Joseph Antha|139/12|1.62|4.00|4240/2016|P-7<br>Sale Deed| |8|Ruby Joseph|139/12|1.68|4.15|4238/2016|P-8<br>Sale Deed| |9|Raimond C.J.|139/23|1.21|2.989|1288/2017|P-9<br>Sale Deed| 9. Since the petitioners are assignees of the registered land holders, their case would fit in with Clause (d) of Sec.3(3) and hence they would fulfill the definition of “land holder” as understood in Sec.3(3)(d). Sec.5(2) of the Kerala Land Tax Act mandates that it is the statutory obligation of competent revenue officials like respondents Tahsildar, Village Officer, etc, to collect basic land tax from the properties concerned from the land holder as understood in Sec.3(3). Hence going by the combined mandate of Sec.5(2) r/w Sec.3(3) of the Kerala Land Tax Act, competent revenue officials like respondents 3 & 4 are under the bounden obligation to accept basic land tax from land holders like in the instant case. Sec.4 of the Kerala Land Tax Act stipulates that arrangement under the Act shall be general revenue settlement and mandates that notwithstanding anything contained in any enactment, grant, deed or other transaction, the arrangement made as per the said Act for the levy of basic tax shall be deemed to be a general revenue settlement of the State. Rule 4 of the Kerala Land Tax Rules, 1972 framed under the said Act mandates **WP(C).No. 3416 of 2019** ## **-:11:-** that a register called the Basic Tax Register shall be maintained in all the Village and Taluk Offices. Since the provisions contained in the Transfer of Registry Rules, 1966 is not framed under any enabling provisions of the parent enactment, the same is only a non statutory/executive guideline. And so by the mandate of Sec.4 of the Kerala Land Tax Act, the provision of the Transfer of Registry Rules will be subservient to the provisions of the Kerala Land Tax Act and the Rules framed thereunder. Therefore where a person fulfills the definition of “land holder” as understood in Sec.3(3), then the competent revenue officials like the Tahsildar, Village Officer, etc are obliged to accept basic land tax from such land holder going by the cumulative mandate of Sec.5(1) and Sec.3(3) of the Kerala Land Tax Act. In such case, the competent revenue officials are also obliged to make a necessary entry in the basic tax register as envisaged under Rule 4 of the Kerala Land Tax Rules, 1972 which is to be maintained in all Village and Taluk Offices. The legal position in this regard has been reiterated by this Court in quite a few number of cases as in _**Sobha Sasidharan v. Tahsildar, Alathur & Another [2019 (1) KHC 96]**_ , etc. 10. It is further pointed out by Sri.T.P.Sajan, learned counsel appearing for the petitioners based on instructions that though the contesting respondents in Ext.P-10 writ proceedings have raised a claim of adverse possession as a case of the petitioners therein/predecessors and **WP(C).No. 3416 of 2019** ## **-:12:-** other family members of contesting respondents 5 & 6 herein, the said claim for adverse possession is only in respect of a limited portion of the entire extent of the said predecessors and further assert that the subject properties conveyed to each of the petitioners by those persons does not in any manner come within the claim of adverse possession raised by the contesting respondents in Ext.P-10 proceedings. Be that as it may, that could be a matter that could be factually investigated by the competent revenue officials concerned. The petitioners have secured their properties on the basis of registered sale deeds. Properties have been duly mutated in the name of petitioners 1 to 4. Therefore there cannot be any reason whatsoever to refuse to accept basic land tax from them on the ground disputes are pending in respect of the predecessor-in-interest of the property, including respondents 5 & 6 and the other persons concerned in Ext.P-10 writ proceedings. Therefore the 4[th] respondent-Village Officer will immediately accept basic land tax from petitioners 1 to 4 and issue land tax receipts. It will be also be open to petitioners 1 to 4 to make necessary application for grant of possession certificate, location sketch, etc which they need for the purpose of relief assistance and on making such application, the 4[th] respondent-Village Officer will immediately grant such revenue certificates to the petitioners 1 to 4. 11. As regards petitioners 5 to 9 concerned, the following directions **WP(C).No. 3416 of 2019** ## **-:13:-** are issued: Since the process of mutation may take some time, and as the said petitioners emergently require a production of basic land tax receipts as well as revenue certificates for the purpose of submitting their application for relief assistance, the 4[th] respondent-Village Officer will consider their request for acceptance of basic land tax in respect of subject properties. For the time being, the petitioners 5 to 9 may submit an application for acceptance of basic land tax in respect of subject properties. The 4[th] respondent-Village Officer will consider the said request of the petitioners 5 to 9 for acceptance of basic land tax and after affording reasonable opportunity of being heard will grant the said request if it is otherwise in order. It is made clear that the 4[th] respondent Village Officer cannot refuse to accept basic land tax from the petitioners 5 to 9 on the mere ground that there are some other disputes pending between the parties in Ext.P-10 proceedings. Consequently it is also ordered it is also open to contesting respondents 5 to 9 to make necessary application for grant of revenue certificates like possession certificate, location sketch, etc before the 4[th] respondent Village Officer upon which the 4[th] respondent will immediately issue the same to the petitioners if the said request is otherwise in order without much delay preferably within a period of 2 months from the date of production of a certified copy of this judgment. 12. In the abovesaid process, it is also ordered that the **WP(C).No. 3416 of 2019** ## **-:14:-** 4[th] respondent will also ascertain as to whether the respective subject properties of petitioners 1 to 9 herein are in any manner coming within the claim of adverse possession made by the contesting respondents in Ext.P-10 proceedings and if it is ascertained that the subject properties are not related to the said extent of properties claimed by those parties on the basis of adverse possession, etc, then there cannot be any further controversy in that regard. However, even if there is a controversy, that by itself cannot detain the grant of mutation. In such an event, if any such persons have any dispute about grant of mutation to the petitioners, they will be at liberty to raise such disputes through lawful proceedings and subject to the result of such proceedings, the mutation granted to the petitioners could be revised subsequently subject to the outcome of such proceedings. 13. Before parting with this case, this Court would certainly observe with a heavy heart that the petitioners who are having hardly limited extent of property ranging from 2.5 to 7.5 cents are who have faced the catastrophe of great flood that has occurred in the State and who are taking steps for getting some form of financial assistance for building their destroyed homestead, have been driven to this Court on account of the action of the respondents in rejecting their request for acceptance of basic land tax and issuance of revenue certificates inspite of the fact that they are having properties on the basis of registered sale deeds and the refusal is merely on the basis of **WP(C).No. 3416 of 2019** ## **-:15:-** certain other disputes involving the predecessor-in-interest of the subject properties and their rival claimants. It has been reiterated by this Court in umpteen number of decisions that grant of mutation and transfer of registry, acceptance of basic land tax, etc is only a limited arrangement for fiscal purposes to ensure timely collection of revenue and the said process will not create or extinguish title and such mutation and transfer of registry will be liable for revision from time to time consequent to verdicts of civil courts which may govern the field subsequently. When this is the simple position, it is incumbent upon the competent revenue officials concerned to ensure that basic land tax is collected in order to fulfil their obligation under the Kerala Land Tax Act and Rules framed thereunder and with a rider that any such action will be subject to revision consequent to the outcome of any further lawful proceedings in that regard that may be set in motion by any rival claimants. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG **WP(C).No. 3416 of 2019** ## **-:16:-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT NO. 5544442 DATED 20.4.17 EXHIBIT P1 A TRUE COPY OF THE LAND TAX RECEIPT NO. 5544443 DATED 20.4.17 EXHIBIT P1 B TRUE COPY OF THE LAND TAX RECEIPT NO. 5544441 DATED 20.4.17 EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT NO. 5037955 DATED 1.10.2016 EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT NO. 5037951 DATED 1.10.2016 EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT NO. 5002809 DATED 1.09.2016 EXHIBIT P5 TRUE COPY OF THE COPY OF THE RECEIPT SHOWING REMITTANCE OF THE TRANSFER FEE BEARING NO.5675852 DATED10.04.2017. EXHIBIT P6 TRUE COPY OF THE RECEIPT SHOWING REMITTANCE OF THE TRANSFER FEE BEARING NO.5675851 DATED 10.4.2017. EXHIBIT P7 TRUE COPY OF THE SALE DEED NO.4240/2016 DATED 3.12.2016 OF ERNAKULAM SRO EXHIBIT P8 TRUE COPY OF THE SALE DEED NO.4238/2016 DATED 3.12.2016 OF ERNAKULAM SRO EXHIBIT P9 TRUE COPY OF THE SALE DEED NO.1288/2017 DATED 31.03.2017 OF ERNAKULAM SRO EXHIBIT P10 TRUE COPY OF THE SAID JUDGMENT DATED 13.08.2018 IN W.P.(C) NO.21865/18. EXHIBIT P11 TRUE COPY OF THE GOVERNMENT ORDER VIDE REF GO(P) NO.04/2018/DMD DATED 29.8.2018 EXHIBIT P12 TRUE COPY OF THE SAID REPRESENTATION FILED BY THE PETITIONERS DATED 8.12.2018.**