Larson T. George and Toubro T. George v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940** ## **WP(C).No.30303 of 2018** ## **PETITIONER:** **1 LARSON T. GEORGE, AGED 36 YEARS S/O.KOMBARA THAZHATHA GEORGE, MARATHAKARA P.O, THRISSUR-680306. 2 TOUBRO T. GEORGE, AGED 34 YEARS S/O KOMBARA THAZHATHA GEORGE, MARATHAKARA P.O., THRISSUR-680306. BY ADV. SRI.G.SREEKUMAR (CHELUR)** |**RESPONDENTS**<br>**:**|**RESPONDENTS**<br>**:**|| |---|---|---| |**1**||**THE STATE OF KERALA,**| |||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| |||**REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,**| |||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE DISTRICT COLLECTOR,**| |---|---| ||**COLLECTORATE, AYYANTHOLE, THRISSUR 680001**| |**3**|**THE TALUK TAHSILDAR,**| ||**TALUK OFFICE, THRISSUR-680020**| |**4**|**THE VILLAGE OFFICER,**| ||**KAINOOR VILLAGE OFFICE, THRISSUR-680014**| ||**SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.30303 of 2018** **2** ## **(CR)** **ALEXANDER THOMAS, J. ========================== W.P(C)No.30303 of 2018 =========================== Dated this the 28[th] day of November, 2018** ## **JUDGMENT** ## **The prayers in this Writ Petition (Civil)** ## **are as follows:** - _**“(i) Issue a writ of Mandamus or any other appropriate writ, order or direction commanding the respondents 3 and 4 to take not of the request of the petitioners in Ext P22 and thus permit them to remit the basic tax for the property covered by Ext P18 in continuation of the remittance made for the year 2016-17 and in future as well within stipulated time limits in the interest of justice.**_ ## _**AND**_ - _**ii) To pass any such or further orders as the petitioners may seek and this Hon'ble Court deem fit to grant.”**_ **2. Heard Sri.Sreekumar G.Chelur, learned** **counsel appearing for the petitioners and** **Sri.Saigi Jacob Palatty, learned Sr.Government** **Pleader appearing for the respondents.** **WP(C).No.30303 of 2018** **3** **3. The petitioners who are the brothers had jointly purchased property having an extent of 1 Acre and 15 cents comprised in Survey No.563/2 Part of the Kainoor Village, Thrissur Taluk, Thrissur Revenue District, as per Ext.P-1 registered sale deed No.2809 of 2007, executed in their favour by one Dr.Gopinathan & Krishna Kumar. The said Dr.Gopinathan & Krishna Kumar had in turn obtained the said property as per Ext.P-2 registered sale deed No.4756 of 2005 and Ext.P-3 registered sale deed No.4738 of 2005 of SRO, Kuttanellur respectively. It is stated that the original title holder had obtained the property on the basis of a patta issued on assignment basis and later he had conveyed the said property to his wife Devaky Amma from whom also the basic land tax has also been accepted as per Ext.P-5 receipt dated 16.11.1995.** **WP(C).No.30303 of 2018** **4** **Exts.P-6 & P-7 are the land tax receipts issued in favour of the above said Dr.Gopinathan & Krishna Kumar, who had obtained the said properties as per the abovesaid Exts.P-2 & P-3. It is later that they had conveyed the properties as per Ext.P-1. Thereafter, the property was mutated in the joint names of the two petitioners herein being the joint owners of the said property as per Ext.P-1 and basic land tax has also been accepted jointly, as evident from Exts.P-8 to P-15.** **4. That the petitioners have possessed the title and possession and the Puthur Grama Panchayath had also permitted them to construct residential building thereon, in accordance with the provisions contained in the Kerala Building Rules and Ext.P-17 dated 31.12.2013 is the No Objection Certificate issued by the said panchayath to effect construction.** **WP(C).No.30303 of 2018** **5** **5. Since the property should jointly in the name of the two petitioners, who are brothers as per Ext.P-1 deed, they had decided to partition the said property and for that purpose they have duly partitioned the said property covered by Ext.P-1 as per Ext.P-18 registered partition deed No.1782 of 2016 dated 16.07.2016 of SRO, Kuttanellur. The petitioners have also submitted Ext.P-19 return dated 22.06.2017 before the Grama Panchayath concerned as required under the provisions of the Kerala Panchayath Raj Act for remittance of property tax. The local grama panchayath concerned has insisted that petitioners should produce land tax receipt in their separate names, after the partition of the property, as per Ext.P-18. Accordingly, the petitioners have submitted Ext.P-20 application dated 29.06.2017 before the 3[rd] respondent-Tahsildar** **WP(C).No.30303 of 2018** **6** **for mutation of the properties pursuant to Ext.P-18 partition deed and for acceptance of basic land tax, etc. The 4[th] respondent-Village Officer had thereupon submitted Ext.P-21 report dated 01.07.2017 before the 3[rd] respondentTahsildar stating that the basic land tax had been paid upto 2016-2017 and that the petitioners have not produced the patta etc. Since no effective action was forthcoming on Ext.P-20 application, the petitioners were constrained to submit Ext.P-22 representation dated 17.08.2017 before the 2[nd] respondentDistrict Collector for directions to respondents 3 & 4 for expeditious grant of mutation, as sought for in Ext.P-20 application, pursuant to Ext.P-18 partition deed etc. However, the 3[rd] respondent-Tahsildar has now issued Ext.P-23 letter dated 18.04.2018** **directing that the petitioners should produce** **WP(C).No.30303 of 2018** **7** **the documents already pointed out by the 4[th] respondent-Village Officer, like the original patta, etc. The petitioners have explained in Ext.P-22 representation dated 17.08.2017 that the original title holder had obtained the property on the basis of patta and that enquiries have now revealed that the original of the said patta is missing or irretrievably lost, after the death of the pattadhar and that during his life time, he had transferred the said property to his wife Devaky Amma. Later, Devaky Amma had conveyed the property on 07.11.2015 to one Saneesh and Vineesh. That later, Saneesh and Vineesh had conveyed the property to the abovesaid Dr.Gopinathan & Krishna Kumar, as per Exts.P-2 & P-3 respectively. Later, the abovesaid Dr.Gopinathan & Krishna Kumar again conveyed their properties covered by Exts.P-2 & P-3 in** **WP(C).No.30303 of 2018** **8** **favour of the two petitioners herein, who are brothers as per Ext.P-1 sale deed. The properties pursuant to Exts.P-2 and P-3, are mutated in favour of Dr.Gopinathan & Krishna Kumar, as evident from Exts.P-6 & P-7. Later, pursuant to Ext.P-1 registered sale deed, the properties were mutated jointly in the names of the two petitioners and thereafter, the basic land tax have also been accepted from them on joint basis, as evident from Exts.P-8 to P-15. It is not in any dispute that the properties were earlier mutated in favour of Dr.Gopinathan & Krishna Kumar, from whom the petitioners had purchased the property, as per Ext.P-1 registered sale deed. It is also not in dispute that after the petitioners had become the joint owners of the property as per Ext.P-1 registered sale deed, the said properties have been mutated jointly in the names of two** **WP(C).No.30303 of 2018** **9** **petitioners by the competent revenue officials concerned and thereafter, basic land tax have also been accepted from them on joint basis, as evident from Exts.P-8 to P-15. No objections whatsoever had been raised by the competent revenue officials, either by the competent revenue officials, when the properties mutated in the names of petitioners, pursuant to Ext.P-1 registered sale deed or earlier when the properties were mutated in favour of the abovesaid Dr.Gopinathan & Krishna Kumar, as per Exts.P-2 & P-3 registered sale deeds. Now what has been done is only that the petitioners, who are the two joint owners of the said properties as per Ext.P-1 have only the partitioned the said properties between them, as per Ext.P-18 registered partition deed dated 16.07.2016.** **WP(C).No.30303 of 2018** **10** **6. Sec.5 of the Kerala Land Tax Act, 1961 deals with “charge of land tax”. Sec.5(2) of the said Act mandates that basic tax charged on any land shall be paid by the “land holder” concerned. “Land holder” has been defined as per Sec.3(3) of the Kerala Land Tax Act, 1961,** ## **which reads as follows:** ## _**(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 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 subclause (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.”**_ **WP(C).No.30303 of 2018** **11** **From a perusal of clauses (a), (b), (c) & (d) of Sec.3(3), it can be seen that the instant case, will not be covered either by clauses (a), (b) or (c) thereof. It is not in dispute that pursuant to Ext.P-1 registered sale deed, the properties were mutated in the joint name of two petitioners, which resulted in the issuance of Exts.P-8 to P-15 land tax receipts. That means that the two petitioners herein became the joint registered “land holders” as conceived in clause(d) of Sec.3. Therefore, the factual scenario in the instant case will stand pigeonholed in terms of clause (d) of Sec.3(3) of the Kerala Land Tax Act, 1961. When the petitioners have become the registered “land holders”, land tax is to be collected from them, going by the mandatory Sec.5(2) r.w.Sec.3(3)(d). The said mandate has already been duly complied with by the** **WP(C).No.30303 of 2018** **12** **competent revenue officials concerned, in as much as land tax have been accepted jointly in the names of two petitioners, as per Exts.P-8 to P-15. Now what has been done in the instant case is only an internal arrangement between the two brothers, whereby they have decided to lawfully partition the said properties which was hitherto held by them on joint basis and that was also been done through the execution and registration of Ext.P-18 partition deed dated 16.07.2016. Of course, in a case that the registered “land holder” as conceived in Sec.3(3)(d) assigns the property in favour of a third person, the said assignee will become the “land holder” by virtue of the operation of the third limb of clause (d) of Sec.3(3). So also in a case that the registered “land holder” conceived in the first limb of Sec.3(3)(d) dies, then his legal representatives would** **WP(C).No.30303 of 2018** **13** **stand in the shoe of the “land holder” as per Sec.3(3). In such cases of such assignment of the property or death of the registered “land holder”, then the assignee or the legal representatives as the case may be, will become the persons who will liable under Sec.5(2) to pay the basic land tax and the statutory revenue authority concerned are legally obliged to collect land tax from the registered “land holder” or legal representatives or assigns, as the case may be, depending upon the factual contingency arising in the case. In the instant case, there is no assignment of the property covered by Ext.P-1 to any third person. So also, there is no death of the “land holder”. This is a simple case of partitioning of the joint property obtained as per Ext.P-1 deed, on the basis of Ext.P-18 partition deed. Therefore, what is only** **WP(C).No.30303 of 2018** **14** **required is that the joint “land holders” should be severed, so that each one of them pursuant to the partition will become the respective registered “land holder” for the respective shares allotted to them pursuant to Ext.P-18 partition deed. It is also trite by a series of rulings of the Apex Court and various High Courts as that in** _**Surney v. Inder Kaur**_ **[AIR(1996) SC 2823] etc, that mutation of the property and acceptance of land tax will not by itself either create or extinguish title, nor has it any presumptive value on title and it only enables the person in whose favour the mutations are ordered to pay land revenue in question. This aspect of the matter is also amplified with all clarity in Rule 16 of Transfer of Registry Rules, which explicitly mandates that the summary enquiry and decision thereon is only an arrangement for fiscal** **WP(C).No.30303 of 2018** **15** **purposes and does not affect the legal rights of any person in respect of any lands covered by the decisions in such transfer of registry cases and that the question of legal rights is always subject to adjudication by Civil Courts and pattas and that pattas would be revised from time to time in accordance with such judicial decisions, etc. Therefore, when the very same respondent-revenue officials concerned, were fully satisfied to mutate the properties in favour of the abovesaid Dr.Gopinathan & Krishna Kumar, when they had purchased the properties as per Exts.P-2 & P-3 and also in the case of the property jointly in the name of the petitioners pursuant to Ext.P-1 registered sale deed, this Court fails to understand, as to why a detailed enquiry is now been insisted by the respondents, as if the whole process is a comprehensive enquiry to** **WP(C).No.30303 of 2018** **16** **determine the title of the registered “land holders” concerned. Such a consideration is totally alien and foreign to the domain of mutation under the Transfer of Registry Rules and the issues of acceptance of land tax under the Kerala Land Tax Act, 1961. The petitioners have clearly stated that with all their efforts, they could not obtain the original of the patta as it is informed to them that the same is missing or irretrievably lost, after the death of the pattadhar, etc. Therefore, the abovesaid decision making process of the respondent-revenue officials concerned, is vitiated by taking into consideration irrelevant aspects and not properly reckoning the core and relevant aspects of the matter. Accordingly, it is ordered that the competent authority among respondents 3 & 4 will forthwith consider the request made by the** **WP(C).No.30303 of 2018** **17** **petitioners in Ext.P-20 application for grant of mutation and acceptance of basic land tax pursuant to Ext.P-18 partition deed and will grant the request if it is otherwise in order. It is made clear that the said request cannot be denied on the ground that the petitioners have not produced the original of the patta, etc. Necessary steps should be taken, so as to mutate the properties covered by Ext.P-18 in terms of the respective different shares allotted to the two petitioners herein and then accept basic land tax separately from the two petitioners concerned and issue land tax receipts separately in that regard to the petitioners for the period from Ext.P-18 partition deed dated 16.07.2016 onwards. It is also made clear in the light of the abovesaid dictum laid down by this Court in various decisions, grant of mutation and acceptance** **WP(C).No.30303 of 2018** **18** **of basic land tax itself will not amount to conferment of title, etc. Necessary steps in that regard should be duly completed by the competent authority among respondents 3 & 4, without much delay, preferably within a period of 4 weeks from the date of production of a certified copy of this judgment and after affording a reasonable opportunity of being heard to the petitioners.** **With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.** **Sd/ALEXANDER THOMAS, JUDGE** **vgd/01.12.18** **WP(C).No.30303 of 2018** **19** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE DOCUMENT BEARING NO.2809 OF 07 DATED 15.5.07 OF THE KUTTANELLUR SRO** **EXHIBIT P2 A TRUE COPY OF THE DOCUMENT BEARING NO.4756 OF 05 OF THE KUTTANELLUR SRO DATED 21.11.05** **EXHIBIT P3 A TRUE COPY OF THE DOCUMENT BEARING NO.4738 OF 05 DATED 19.11.05 OF THE KUTTANELLUR SRO EXHIBIT P4 A TRUE COPY OF THE ORIGINAL ASSIGNMENT ON REGISTRY ISSUED IN FORM NO.6 DATED 11.10.00** **EXHIBIT P5 A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF DEVAKYAMMA DATED 16.11.1995 EXHIBIT P6 A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF GOPINATHAN DATED 17.10.06 EXHIBIT P7 A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF KRISHNAKUMAR DATED 17.10.06 EXHIBIT P8 A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF PETITIONERS DATED 9.11.07 EXHIBIT P9 A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF PETITIONERS DATED 18.1.2011 EXHIBIT P10 A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF PETITIONERS DATED 11.12.2012 EXHIBIT P11 A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF PETITIONERS DATED 24.8.2013 EXHIBIT P12 A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF PETITIONERS DATED 7.2.2015 EXHIBIT P13 A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF PETITIONERS DATED 8.10.2015** **WP(C).No.30303 of 2018** **20** **EXHIBIT P14** **A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF PETITIONERS DATED 12.7.2016** **EXHIBIT P15** - **A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF PETITIONERS DATED 26.9.2016** - **EXHIBIT P16** **A TRUE COPY OF THE POKUVARAVU FEES DATED 26.9.2016 IN THE NAME OF THE PETITIONERS** **EXHIBIT P17** - **A TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE PUTHUR GRAMAPANCHAYATH DATED 31.2.2013** - **EXHIBIT P18** - **A TRUE COPY OF THE DOCUMENT BEARING NO.1782 OF 2016 DATED 16.7.2016** - **EXHIBIT P19** **A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE LOCAL AUTHORITY DATED 22.6.2017** **EXHIBIT P20** - **A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE TAHSILDAR, THIRD RESPONDENT DATED 29.6.2017** - **EXHIBIT P21 A TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, KAINOOR DATED 1.7.2017 TO THE TAHSILDAR** - **EXHIBIT P22 A TRUE COPY OF THE REQUEST OF THE PETITIONER DATED 17.8.2017** - **EXHIBIT P23** **A TRUE COPY OF THE REPLY GIVEN BY THE TALUK TAHSILDAR, THRISSUR DATED 18.4.2018**