N.V. Venugopalan v. District Collector, Kannur District, Tahsildar, Kannur Taluk, Village Officer, Kadannapally Village and Sreedharan Komaram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940** ## **WP(C).No. 2231 of 2019** ## **PETITIONER:** **N.V.VENUGOPALAN AGED 57 YEARS S/O.GOVINDAN, NADUVILE VEETIL, MALLIYOTT, KUNHIMANGALAM AMSOM, KUNHIMANGALAM.P.O, KANNUR DISTRICT.** **BY ADVS. SRI.O.V.MANIPRASAD SRI.JOSE ANTONY** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, KANNUR DISTRICT,KANNUR,PIN-670001.** - **2 THE TAHSILDAR, KANNUR TALUK,KANNUR,PIN-670001.** - **3 THE VILLAGE OFFICER, KADANNAPALLY VILLAGE,KADANNAPALLY.P.O, KANNUR DISTRICT,PIN-670501.** - **4 VADAKKEDATH SREEDHARAN KOMARAM, S/O.KUNHAMBU,KADANNAPALLY AMSOM,KADANNAPALLY.P.O, KANNUR DISTRICT-670501.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C)No.2231 of 2019 2 ## **(CR)** ## **ALEXANDER THOMAS, J.** **=========================== W.P(C)No.2231 of 2019 ===========================** Dated this the 24[th] day of January, 2019 ## **JUDGMENT** The petitioner is deeply aggrieved by the impugned decision as per Ext.P-5 dated 30.01.2018 rendered by the 2[nd] respondentTahsildar, whereby he has refused to grant mutation and to accept basic land tax in respect of petitioner’s property on the ground that an encroacher has constructed a residential building in the subject property and is residing there. 2. The prayers in the above Writ Petition (Civil) are as follows: - _“(i) Issue a writ of certiorari or other appropriate writ, order or direction to quash Ext.P5 order dated 31.10.2018 of the 3[rd] respondent;_ - _(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 3 to accept basic tax (land tax) from the petitioner and his co-sharers with regard to 8.750 cents of land in Re-Sy.82/1 of Kadannapally village, Kannur Taluk, Kannur District allotted to them in Ext.P2 final decree, by effecting mutation (transfer of registry) in their names in the revenue records._ _And_ W.P(C)No.2231 of 2019 3 - _(iii) Such other relief this Hon'ble court deems fit and proper to grant in the facts and circumstances of the case._ 3. Heard Sri.O.V.Maniprasad, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Sr.Government Pleader appearing for official respondents 1 to 3. In the nature of orders proposed to be passed in this Writ Petition, notice to contesting respondent No.4 will stand dispensed with. 4. As stated hereinabove, the petitioner is aggrieved by the action of the respondents 2 & 3 in refusing to accept basic land tax from the petitioner and his co-sharers for the property that was devolved upon them on the death of their father, who is the original owner and allotted to them as per Ext.P-2 final decree dated 05.04.1994 rendered by the Munsiff’s Court, Payyannur in I.A.No.1101/1992 in O.S.No.124/1983. The said suit is the one for partition. As per Ext.P-2 final decree rendered on 05.04.1994, about 8.750 cents of land in re-survey No.82/1 of Kannappally Village, Kannur Taluk, Kannur Revenue District was allotted to the petitioner, his mother and siblings. The 3[rd] respondentVillage Officer has refused to collect basic land tax in respect of the said property and on appeal, the 2[nd] respondent-Tahsildar has W.P(C)No.2231 of 2019 4 now issued the impugned Ext.P-5 proceedings dated 31.10.2018 informing that the basic land tax cannot be collected from the “land holders”, on the ground that for the last 12 years, a person who belongs to the same family but who appears to have no right over the subject property, has constructed a residential building in the said property and has been residing there and that he has not been able to produce any documents to vindicate any of his claims over the subject property. Inspite of this, the 2[nd] respondent would assert in Ext.P-5 that he will not accept basic land tax from the petitioner and his other co-sharers. Ext.P-5, reads as follows: ## **"** സ� **2-6763 /18** ത�ലക� ഓഫ�സ� **,** പയനർ **,** ത�യത� **: 31 /10 /2018.** പപഷകൻ തഹസ�ൽദ�ർ **,** പയനർ **.** സസ�കർത�വ� ശ� **.** പനവളപ�ൽ ന�ര�യണൻ മതൽ **11** പപർ **,** കഞ�മ&ഗല& അ&ശ& **,** മല�പയ�ട� **.** സർ **,** വ�ഷയ& **:** ഭന�കത� **-** കടനപള� റ� **.** സ **. 82 /1 -** ലല വസവ�ല4 ന�കത� സസ�കര�കനത� സ&ബന�ച� ജ�ല� കളകർ മൻപ�ലക സമർപ�ച അപ�ൽ ഹർജ� **.** സചന **: 1. DCKNR /14664 /17-G1,** ത� **. 22 /11 /2017. 2.** കടനപള� വ�പലജ� ഓഫ�സറലട **03/03/2018 -** ലല **36 /18** നമർ റ�പപ�ർട� **. ------------------------------------------** W.P(C)No.2231 of 2019 5 കടനപള� അ&ശ& റ� **.** സ **. 82/1-** ല4 ന�കത� സസ�കര�കണലമന� ക�ണ�ച� ത�ങൾ മതൽ **11** പപർ ജ�ല� കളകർ മൻപ�ലക സമർപ�ച അപ�ൽ ഹർജ�യ�ൽ ന�യമ�നസരണ നടപട�കൾ സസ�കര�ച� കക�ലയ അറ�യ�ക�ൻ സചന **(1)** പക�ര& ജ�ല� കളകർ ന�ർപCശ�ച�ടണ� **.** പക�ടത�യ�ലണ�യ�രന **partition** പകസ� വ�ധ�യലട അട�സ�നത�ൽ കകവശ& വന�ടള വസവ�ൽ **12** വർഷത�ലധ�കമ�യ� **,** കട&ബത�ൽലപടത& എന�ൽ വസവ�ൽ അവക�ശമ�ല�തതമ�യ മലO�ര കക� മലO�ര വ�ട� ലവച� ത�മസ�ച� വര�കയ�ണ� **.** എന�ൽ വസവ�ൽ അവക�ശ& ലതള�യ�കനത�നള യ�ലത�ര പരഖയ& ഹ�ജര�ക�ൻ ട�യ�ന� സ�ധ�ച�ട�ല **.** തർകരഹ�തവ& യഥ�ർത കകവശവമള വസവ�ന� മ�തപമ ഭന�കത� സസ�കര�ച� രശ�ത� നൽകവ�ൻ **.** സ�ധ�കകയള ആയത�ന�ൽ അപപക വസ സ&ബന�ച� ഇര കക�കൾ തമ�ൽ തർക& ന�ലന�ൽകനത�ന�ൽ ഒര സ�വ�ൽ പക�ടത�ലയ സമ�പ�ച� പശ പര�ഹ�ര& ക�പണണത�ണ� **.** വ�ശസസതപയ�ലട **,** തഹസ�ൽദ�ർ പകർപ� **:-** **1.** വ�പലജ� ഓഫ�സർ **,** കടനപള� **.** **2.** ശ�ധരൻ പക�മര& എ **. (** കടനപള� വ�പലജ� ഓഫ�സർ നടത� മടകണ& **)”** 5. It can be seen from Ext.P-5 that a copy of Ext.P-5 proceedings is seen marked to contesting respondent No.4. At the outset this Court would observe for reasons to be dealt with hereinafter that the abovesaid stand of the 2[nd] respondentTahsildar is highly illegal, _ultra vires_ and is vitiated by “wednesbury unreasonableness”, in the sense that no reasonable authority who is properly instructed on facts and law would have ever entertained such a view as the one reflected in Ext.P-5. Cases of this nature are mounting before this Court, where the competent revenue officials like Tahsildar, Village Officer, etc. are W.P(C)No.2231 of 2019 6 consistently either delaying or refusing to grant mutation for flimsy and untenable grounds. This result in driving such “land holders” to this Court for getting justice. The inevitable result is that the writ jurisdiction of this Court is being heavily overloaded due to matters of this nature, which could have been easily resolved at the level of the Village Officer or the Tahsildar. Inspite of resolving such issues from the basic perspectives as borne out from the Kerala Land Tax Act, the Kerala Land Tax Rules and the Transfer of Registry Rules, officers are taking a stand in many a case, which is compelling many a litigant as the one in the instant case, to approach this Court, wherein it is clearly disclosed that the grounds of refusal are based on highly untenable and unsustainable aspects. 6. The matters relating to the basic land tax are regulated and governed by the provisions contained in the Kerala Land Tax Act, 1961 and the Kerala Land Tax Rules, 1972 framed thereunder. Sec.5(2) of the Kerala Land Tax Act, 1961 mandates that the basic land tax shall be charged on any land and shall be paid by the “land holder” of that land, etc. Land holder has been defined in Sec.3(3), which reads as follows: W.P(C)No.2231 of 2019 7 - _**“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 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 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.”**_ 7. In the instant case, the petitioner and the other co-sharers concerned are the legal representatives of the deceased W.P(C)No.2231 of 2019 8 land holder concerned. There does not appear to be any serious dispute that earlier the property was duly mutated in the name of the deceased father of the petitioner and the petitioner and the other co-sharers have obtained the said property on the basis of a final decree rendered by the civil court concerned as per Ext.P-2 final decree dated 05.04.1994 rendered in O.S.No.124/1983 on the file of the Munsiff’s Court, Payyannur. 8. Going by the facts of this case, though clauses (a), (b) & (c) of Sec.3(3) may not be attracted, there cannot be any doubt that the case would be pigeonholed in terms of clause (d) of Sec.3(3). So long as Ext.P-2 final decree rendered by the civil court has not been disturbed or reversed in the manner known to law, the competent revenue officials concerned are obliged to treat the petitioner and the other co-sharers, who are the allottees pursuant to the final decree as per Ext.P-2 as the “land holders” in terms of Sec.3(3)(d) of the Act. Sec.5(2) mandates that the competent revenue officials are obliged to collect land tax from the “land holders” as understood in Sec.3(3). Hence, by the cumulative impact of Sec.5(2) and Sec.3(3), the competent revenue officials like respondents 2 & 3 are obliged in law to W.P(C)No.2231 of 2019 9 accept basic land tax from the petitioner and the other co-sharers in respect of the subject property pursuant to Ext.P-2 final decree. This Court would be even venture to hold that in matters like this, it is more the obligation of the competent revenue officials concerned to ensure that the land revenue is collected and it is for them to be alert and vigilant to ascertain as to who are the “land holders” as understood in Sec.3(3) so that there is no stoppage of collection of basic land tax in respect of the subject property. Sec.4 of the Kerala Land Tax Act, which deals with the arrangement for general revenue settlement mandates that notwithstanding anything in any enactment, grant, deed or other transaction, the arrangement made as to the said Act, for the levy of the basic tax shall be deemed to be a general revenue settlement of the State. Since the provisions of the Transfer of Registry Rules, 1966 have not been framed by virtue of the enabling provisions contained in a parent enactment, the same is only a non-statutory guideline and hence the same would be a subservient to the provisions of the Kerala Land Tax Act and the Kerala Land Tax Rules, more so particularly in view of the mandate of Sec.4. Rule 4 of the Kerala Land Tax Rules framed W.P(C)No.2231 of 2019 10 under the Kerala Land Tax Act clearly stipulates that a register called the Basic Tax Register (BTR) shall be maintained in all village, taluk offices. Therefore, in a case as in the instant one, where the co-owners/co-sharers have been duly allotted the shares pursuant to a final decree of the civil court in a suit for partition, it is the statutory obligation of the competent revenue officials concerned to ensure that basic land tax is collected from such persons who are “land holders” as understood in Sec.3(3) and more so particularly because of the mandate Sec.5(2) which obligates the competent revenue officials to collect land tax from the “land holder” concerned. On doing so, necessary entries should also be made by the competent revenue officials in the Basic Tax register (BTR), as envisaged under Rule 4. This is the clear impact and the consequences flowing from the provisions of the Kerala Land Tax Act and the Kerala Land Tax Rules, as observed by this Court in a series of cases. However, it is also observed the Kerala Land Tax Act is the only branch in taxation laws, wherein the tax payers are going after the tax collectors to pay the tax dues, whereas tax collectors in cases as in the instant one; take the adamant stand that they would either delay or W.P(C)No.2231 of 2019 11 refuse to accept basic land tax citing flimsy or untenable grounds. This state of affairs is nothing but clear abdication of the statutory duties and obligations of the competent revenue officials and it would also amount to dereliction of their duties, as it permits evasion of land revenue which is otherwise to flow to the public exchequer. Many a time it is seen that the competent revenue officials are under the misunderstanding that they should also get into the vexed issues of adjudication of disputed title before they would venture as to from whom basic land tax should be accepted. This state of affairs should not be permitted to continue by the higher authorities of the State, lest it will lead to a situation, whereby the confidence of the citizenry in the rule of law mechanism might erode. So also, as have been observed by this Court that the competent revenue officials enter into the difficult terrain of determination of disputed titles, etc., it could also lead to transgression of the sacred constitutional doctrine of “separation of powers”, as the powers in relation to determination of vexed issues of title disputations are essentially within the domain of the civil court concerned. 9. This Court has even observed in one of the judgments W.P(C)No.2231 of 2019 12 in a similar case that observations of this nature may turn out to be the “cry of a prophet in the wilderness”. It is hoped and expected that the higher authority of the State would rise up to the occasion and ensure that arbitrariness as displayed in the instant case is reined in. All efforts should be taken by the higher functionaries in charge of the governance of the State administration, to ensure that the faith of the citizenry in the rule of law mechanism is not eroded in any manner. Strict measures should be taken by the higher functionaries of the State to ensure that the citizens and tax payers do not get even a remote perception that what they are facing is a situation of “bureaucratic overlordism” ("ഉപദ]�ഗസ ദഷ� പഭതസ& **"** ). In this context, it is equally apposite to bear in mind that “overlordism” is a disease that can afflict any organ of the State. One effective perspective for functionaries to get immunised from such ailment, is to listen to “Truth” speaking to “Power” and also to have the crucial insight that functionaries are entrusted essentially to discharge the functions and duties allotted in their respective spheres and that they are not “Power holders” but are functionaries who are to exercise powers only for discharging their allotted functions and W.P(C)No.2231 of 2019 13 duties. The enigma and dialectics of power has been powerfully told in the saga of J.R.R. Tolkien viz., the celebrated trilogy of “The Lord of the Rings”. The dialectics in the power syndrome can be more powerfully transcended by functionaries consistently listening to the following words of a frail man, whose anniversary of sacrificial martyrdom will be observed by us in less than a week from today:- _"I will give you a talisman. Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man [woman] whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him [her]. Will he [she] gain anything by it? Will it restore him [her] to a control over his [her] own life and destiny? In other words, will it lead to swaraj [freedom] for the hungry and spiritually starving millions? Then you will find your doubts and your self melt away."_ No doubt, our Constitution is the “ _Grund Norm_ ”. But all concerned more particularly, the functionaries entrusted by the Constitution and the laws to carry out various duties and functions could also have the insight that the blood and sufferings of the millions of untold, unheard and unsung heroes and heroines who valiantly fought for the freedom struggle of our country, constitute the unseen, but real foundation on which the base and super structure of our Constitution, our laws and our system of Constitutional Republican Democracy have been built up. Insight and comprehension of these deeper truths, by the functionaries irrespective as to which organ of the State they belong, could at least be an anti-dote to “power for the sake of W.P(C)No.2231 of 2019 14 power” malady and “Tolkiensque ring” syndrome and in our constant endeavours to ensure that functionaries are not power holders, but servants of the people of the nation. 10. If simple cases of grant of mutation are considered from the straight and simple perspective as borne out from the provisions of the Act and the Rules, disputes of this nature need not enter into the portals of this Court. If efforts are not taken to seriously stop the present trend, it will lead to the situation whereby, minor matters of this nature would take the major time and efforts of this Court and this will lead to the result that this Court will not be able to focus its energy and attention to matters of more serious import and significance, which are expected to be handled by the constitutional court. 11. Coming to the facts of this case, it is only to be held that the 2[nd] respondent has no jurisdiction or competence to refuse the acceptance of basic land tax in a case like this on the ground that he has some information that a third party has constructed a building in the property and is residing there. In the same breadth the 2[nd] respondent would also say that this stranger presumably the 4[th] respondent has not been able to W.P(C)No.2231 of 2019 15 produce any documents to vindicate any claims in respect of the subject property even remotely. The petitioner has stated that the allegations raised by R-2 in Ext.P-5 are wrong and that R-4 is residing in a house situated in the property as a tenant on rent and not as a cultivating tenant. It is not stated in Ext.P-5 as to the objective materials on the basis of which R-2 has got the information about such alleged encroachment and it appears that these factual allegations are made without any prior notice to the petitioner and his other co-sharers. Any responsible and experienced official of the rank of the respondent-Tahsildar can never hold that an encroacher as mentioned in Ext.P-5 could be construed as “land holder” as defined in Sec.3(3). So also, it is beyond dispute that in the facts of this case, the petitioner and the other co-sharers are “land holders” as understood in Sec.3(3) (d), in view of Ext.P-2 decree of the civil court. In that regard it is only to be borne in mind that this Court has already held in very many cases including the one in Hazeena v. Tahsildar 2010 (3) KLT 278, para 6 that the person from whom the land tax is to be collected is the “land holder” as defined in the Kerala Land tax Act and not from anyone else and that land tax is to be collected every W.P(C)No.2231 of 2019 16 year before the period stipulated in that regard as per the said Act and the rules framed thereunder and further that if the Village Officer refused to accept land tax, the loser will be the public exchequer. The inter-play between the various provisions as in Sec. 5(2), Sec. 3(3), Sec.4, etc. of the Kerala Land Tax Act, Rule 4 of the Kerala Land Tax Rules and the subservience of the Transfer of Registry Rules has been dealt with in detail in the judgment of this Court in Sobha Surendran v. Tahsildar Alathur & Anr. [2019 (1) KHC 96]. In _**Sobha Surendran's case**_ supra, the respondent Tahsildar therein refused to accept basic land tax from the undisputed legal heir of the deceased registered land holder on the ground that the name of a stranger was shown in the thandaper register of the said property and it was inter alia held by that the action in showing the name of such a stranger in the revenue records after the death of the deceased registered holder and that too without notice to his LRs, will be null and void as otherwise such stranger/third party should be one has lawfully obtained title for the said property to stand in the shoe of the deceased registered land holder so as to displace his LRs to be the “land holder”, who otherwise would stand in his “shoe”, W.P(C)No.2231 of 2019 17 due to clause (d) of Sec. 3(3). 12. In the light of these aspects, it is only to be ordered that the stand taken by the 2[nd] respondent-Tahsildar is vitiated by illegality, impropriety and “wednesbury unreasonableness”. Accordingly, the impugned decision at Ext.P-5 will stand set aside. The 3[rd] respondent-Village Officer will immediately take up the request of the petitioner and the other co-sharers for mutation, transfer of registry and acceptance of basic land tax and after affording a reasonable opportunity of being heard to them, will grant the said request, without any further delay, more so particularly, in the light of Ext.P-1 final decree rendered by the civil court concerned as early as on 05.04.1994. 13. For the sake of effective compliance of the abovesaid direction, the petitioner and the other co-sharers may submit a proper application seeking grant of mutation, transfer of registry and acceptance of basic land tax, in respect of the subject property before the 3[rd] respondent-Village Officer. 14. The Secretary to the office of the Advocate General will forward certified copies of this judgment to the Chief Secretary to the Govt. of Kerala, the Additional Chief W.P(C)No.2231 of 2019 18 Secretary/Principal Secretary to the Govt. of Kerala in the Revenue Department and the Principal Secretary to the Hon'ble Chief Minister, for necessary information. With these observations and directions, this Writ Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd/28.01.19 W.P(C)No.2231 of 2019 19 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PRELIMINARY DECREE DATED 31.10.1986 IN O.S.NO.124 OF 1983 OF THE MUNISFF COURT,PAYYANNUR. EXHIBIT P2 A TRUE COPY OF THE FINAL DECREE DATED 5.4.1994 IN I.A.1101/1992 IN O.S.124/1983 OF THE MUNSIFF COURT,PAYYANNUR. EXHIBIT P3 A TRUE COPY OF THE APPLICATION SUBMITTED TO THE 3RD RESPONDENT ON 5.5.2017. EXHIBIT P4 A TRUE COPY OF THE APPEAL SUBMITTED BEFORE THE 1ST RESPONDENT BY THE PETITIONER AND OTHERS. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 31.10.2018 OF THE 2ND RESPONDENT.**