High Court of KeralaSingle Judge2018-09-13Disposed of

OP(C) Nos. 899 & 1110 of 2017 & WP(C) No. 37446 of 2017 – Common Judgment of A. Hariprasad, J.

Case / Petition Number:OP(C) Nos. 899 & 1110 of 2017 & WP(C) No.37446 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2018-09-13
Court Decision / Holding: Common judgment disposed of the petitions with a modification: the second respondent is empowered to accept basic tax from the petitioners on paying the appropriate amounts, while the remainder of the order remains unchanged; all petitions are disposed of and interlocutory applications are closed. The decision clarifies that tax collection may proceed in the interim without infringing the ultimate rights of the parties as adjudicated in the suits.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

Ansar A
Najma
Ariketty Abdul Nazar

Respondents

Cholakkal Hamza
Hifs Rahman
District Collector, Way anad
Village Officer, Vengapally
Tahsildar Vyithiri

Legal Representation & Advocates

Counsels for Petitioners

• P. C. Chacko (Parathanam)

Counsels for Respondents

• Celine Joseph
• B. R. Muraleedharan
• P. C. Chacko (Parathanam)
• P. R. Venkatesh

Case Synopsis & Summary

These petitions were heard together before a single judge of the Kerala High Court (Hon. Justice A. Hariprasad) and relate to challenge of orders in Original Suits No. 1 of 2017 and No. 33 of 2016 (Sulthan Bathery) and a connected Writ Petition (WP(C) No. 37446 of 2017). The core issue is whether a transfer of property in favour of the writ petitioners occurred despite an interim restraining order against alienation, and whether revenue authorities can accept basic land tax while the civil suits are pending and attachment orders have affected the property. The petitioners (Ansar A., Najma, and Ariketty Abdul Nazar) contend that there was a valid transfer culminating in their name and that pendency of suits should not bar tax collection; they rely on this Court’s decisions in Joseph Kurian v. Village Officer and Sudan K.K. and Others v. State of Kerala and Others to support the proposition that civil proceedings cannot prevent tax reception. The respondents argue to uphold prior attachments and court orders. In a common judgment dated 07-06-2018, the Court partially allowed the petitions by modifying the order so that the second respondent (revenue authority) may accept basic tax from the petitioners upon tendering appropriate amounts, while keeping other directions intact. All petitions were disposed of and pending interlocutory applications closed, with a direction to proceed with trial for the suits.

Legal Doctrines & Maxims

Pendency of civil suits is not a bar to tax collection
Court decisions cited (Joseph Kurian v. Village Officer; Sudan K.K. and Others v. State of Kerala and Others) used to support tax reception despite pendency of suits

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that despite interim restraint orders, a valid transfer in their favour had crystallized, and that basic land tax must be accepted by revenue authorities even while civil suits are pending. Relying on the principles laid down in Joseph Kurian v. Village Officer and Sudan K.K. and Others v. State of Kerala and Others, they urged that pendency of suits cannot bar tax collection and urged the Court to permit acceptance of basic tax on tender of amounts. They asserted that the transfers and attachments were already in effect and that withholding tax would penalize the petitioners unnecessarily.

Contentions of Respondents

The respondents argued for adherence to existing attachments and court orders affecting the properties; they emphasized that the civil suits and attached properties must be respected and that revenue actions should align with the status of the litigation. They maintained that any modification should not prejudice the rights of other parties or undermine the attached properties pending trial.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Joseph Kurian v. Village Officer	2010(3) K.L.T 251	Positive	Court relies on this decision to support that pendency of civil suits cannot bar the payment/collection of basic land tax.
Sudan K.K and Others v. State of Kerala and Others	2013(4) K.H.C 201	Positive	Court relies on this decision for the principle that tax collection should not be blocked by ongoing litigation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY ,THE 13TH DAY OF SEPTEMBER 2018 / 22ND BHADRA, 1940** ## **OP(C).No. 899 of 2017** **AGAINST THE JUDGMENT IN OS 33/2016 of SUB COURT, SULTHAN BATHERY** ## **PETITIONER :** **ANSAR.A, AGED 32 YEARS, S/O ABDULLA, ANIYARATH HOUSE, ARIVARAMKUNNU, KAMBALAKKAD POST, KANIYAMBETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.** **BY ADV. SRI.P.C.CHACKO(PARATHANAM)** ## **RESPONDENT :** **CHOLAKKAL HAMZA, S/O BEERANKUTTY, CHOLAKKAL HOUSE, ACHOORANAM POST AND VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT - 673 575.** **BY ADV. SMT.CELINE JOSEPH.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.09.2018, ALONG WITH WP(C).37446/2017, OP(C).1110/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(C) Nos.899 & 1110 of 2017 & 2 W.P(C) No.37446 of 2017 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY ,THE 13TH DAY OF SEPTEMBER 2018 / 22ND BHADRA, 1940** ## **OP(C).No. 1110 of 2017** **AGAINST THE ORDER IN I.A NO.7/2017 DATED 17-12-2017 IN OS 1/2017 of SUB COURT, SULTHAN BATHERY** ## **PETITIONER :** **NAJMA,** **W/O.HAMSA, AGED 44, KUZHIPPAYIL HOUSE, B.P.ANGADI POST, THALAKKAD VILLAGE, KODAKKAL TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.C.CHACKO(PARATHANAM)** ## **RESPONDENTS:** - **1 CHOLAKKAL HAMZA, S/O.BERANKUTTY, AGED 48, CHOLAKKAL HOUSE, ACHOORANAM P.O, AND VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.** - **2 HIFS RAHMAN, S/O. MOHAMMED, AGED 37, CHOLAKKAL HOUSE, KAMBALAKKAD P.O,RKANIAMBETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.** **BY ADV. SMT.CELINE JOSEPH.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.09.2018, ALONG WITH WP(C).37446/2017, OP(C).899/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(C) Nos.899 & 1110 of 2017 & 3 W.P(C) No.37446 of 2017 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY ,THE 13TH DAY OF SEPTEMBER 2018 / 22ND BHADRA, 1940** ## **WP(C).No. 37446 of 2017** ## **PETITIONER :** **ARIKETTY ABDUL NAZAR, AGED 49 YEARS, S/O MOIDU, CHERUKATOOR POST,CHERUKATOOR AMSOM DESOM, MANANTHAVANDY TALUK, WAYANADU DISTRICT. BY ADV. SMT.CELINE JOSEPH.** ## **RESPONDENTS :** |**1**|**DISTRICT COLLECTOR, WAYANAD**| |---|---| ||**CIVIL STATION, KALPETTA NORTH PO,**| ||**WAYANAD DISTRICT - 673 122,**| |**2**|**VILLAGE OFFICER,**| ||**VENGAPALLY VILLAGE OFFICE,**| ||**VENGAPALLY PO, VYTHIRI TALUK,**| ||**WAYANAD DISTRICT - 673 576.**| |**3**|**TAHASILDAR,VYTHIRI TALUK,**| ||**VYTHIRI POST, WAYANAD - 673 576.**| O.P.(C) Nos.899 & 1110 of 2017 & 4 W.P(C) No.37446 of 2017 ## **ADDL.R4 IMPLEADED** |**ADDL.** **R** **4** **ADDL.** **R** **5** **ADDL.** **R** **6**|**NAJMA, AGED 44 YEARS,** **W/O HAMSA, RESIDING AT KUZHIPPAYIL HOUSE,** **B.P.ANGADI POST, THALAKKAD VILLAGE,** **KODAKKAL TALUK, MALAPPURAM DISTRICT-680 104.** **IS IMPLEADED AS PER ORDER DATED 08-12-2017 IN** **I.A NO.19676/17.** **ADDL.R5 AND R6** **SHANAWAS, S/O KUNHAMMED HAJEE,** **NEELIKANDY HOUSE, SHERLY NIVAZ,** **KALPETTA-673 122.** **UNNIMOIDEENKUTTY @ CHERUTH,** **PALLISSERY HOUSE, CHEKUTHANKUNNU,** **KAMBLAKKAD P.O, WAYANAD DISTRICT-673 122.** **ARE IMPLEADED AS PER ORDER DATED 16-01-2018 IN** **I.A NO.701 OF 2018.**| |---|---| **BY ADVS. R1 TO R3 BY GOVERNMENT PLEADER SRI.B.R.MURALEEDHARAN. R4 TO R6 BY SRI.P.C.CHACKO(PARATHANAM)& SRI.P.R.VENKETESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.09.2018, ALONG WITH OP(C).1110/2017, OP(C).899/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C) Nos.899 & 1110 of 2017 & 5 W.P(C) No.37446 of 2017 ## A.HARIPRASAD, J. -------------------------------------- O.P.(C) Nos.899 & 1110 of 2017 ## & W.P(C) No.37446 of 2017 -------------------------------------- Dated this the 13th day of September, 2018 ## C O M M O N J U D G M E N T Heard the learned Senior counsel for the petitioner and the learned counsel appearing for the respondent. 2. This W.P(C) No.37446 of 2017 along with O.P.C Nos.899 & 1110 of 2017 were disposed of by this Court by a common judgment dated 07-06-2018. 3. It is submitted by the learned counsel on both sides that the first respondent in both the original petitions is the common defendant in O.S No.1 of 2017 and O.S No.33 of 2016 pending before the Sub Court, Sulthan Bathery. It is an undisputed fact that in O.S No.1 of 2017, the claim of the plaintiff against the writ petitioner is for cancellation of O.P.(C) Nos.899 & 1110 of 2017 & 6 W.P(C) No.37446 of 2017 a document executed by the plaintiff in favour of the defendant. As an alternative prayer, recovery of money is also raised by the plaintiff in O.S No.1 of 2017 against the writ petitioner. In that matter, there was an order of attachment passed by the court below in respect of the plaint schedule property as well as another property belonging to the writ petitioner. It is submitted by the learned Senior counsel that on 17-02-2017, the order of attachment passed against the property of first respondent in the original petitions (defendant in the suits) was lifted. It is the further submission that on 09-03-2017, the property, which was not included in the suit, and whose attachment was lifted, was assigned by the first respondent in the original petitions in favour of the writ petitioner. Thereafter, on 21-03-2017, a learned Single judge of this Court passed an order restraining the respondent in the original petitions from alienating plaint B schedule properties in O.S No.1 of 2017 until further orders. It had been clarified in the interim order itself that the order will be subject to any transfer already taken place. It is the O.P.(C) Nos.899 & 1110 of 2017 & 7 W.P(C) No.37446 of 2017 submission that even before passing the order by this Court on 21-03-2017, the transfer of property by the first respondent in favour of the writ petitioner had taken place. 4. Grievance of the writ petitioner is that despite having a valid transfer in his name, the revenue authorities are not accepting basic tax in respect of the property. Relying on the decisions of this Court in Joseph Kurian v. Village Officer (2010(3) K.L.T 251) and Sudan K.K and Others v. State of Kerala and Others (2013(4) K.H.C 201) , it is contended by the learned Senior counsel for the writ petitioner/review petitioner that pendancy of a civil suit can never be a bar with regard to acceptance of land tax, unless specifically restrained from accepting tax by virtue of any order passed by the Court. In this case, there is no order passed against reception of basic tax from the writ petitioner. 5. Therefore, the common order is modified to the extent that the second respondent is free to accept basic tax from the petitioners, if O.P.(C) Nos.899 & 1110 of 2017 & 8 W.P(C) No.37446 of 2017 appropriate amounts are tendered. It is further clarified that this order will not stand in the way of any legal contentions that is allowable to all the parties. I find no reason to modify the other parts of the order as the suits are getting ready for trial. With these observations, the petitions are disposed of. All pending interlocutory applications will stand closed. A. HARIPRASAD, JUDGE. amk O.P.(C) Nos.899 & 1110 of 2017 & 9 W.P(C) No.37446 of 2017 ## **OP(C).No. 899 of 2017** |**PETITIONER'S**|**EXHIBITS :**|**EXHIBITS :**| |---|---|---| |**EXHIBIT P1**|**:**|**TRUE COPY OF PLAINT IN OS NO.33/2016**| |||**ON THE FILES OF THE SUB COURT,**| |||**SULTHAL BATHERY.**| |**EXHIBIT P2**|**:**|**TRUE COPY OF THE WRITTEN STATEMENT**| |||**FILED BY THE RESPONDENT IN OS**| |||**NO.33/2016 ON THE FILES OF THE SUB**| |||**COURT, SULTHAN BATHERY.**| |**EXHIBIT P3**|**:**|**TRUE COPY OF IA NO.796/16 IN OS**| |||**NO.33/16 ON THE FILES OF THE SUB**| |||**COURT, SULTHAN BATHERY FILED**| |||**BY THE PETITIONER.**| |**EXHIBIT P4**|**:**|**TRUE COPY OF COUNTER AFFIDAVIT OF THE**| |||**RESPONDENT IN I.A NO.796/16 IN OS**| |||**NO.33/16 ON THE FILE OF THE SUB**| |||**COURT, SULTHAN BATHERY.**| |**EXHIBIT P5**|**:**|**TRUE COPY OF THE ORDER DATED**| |||**27-02-2017 IN I.A NO.796/16 IN OS**| |||**NO.33/16 ON THE FILE OF THE SUB**| |||**COURT, SULTHAN BATHERY.**| |**EXHIBIT P6**|**:**|**TRUE COPY OF HTE AGREEMENT EXECUTED**| |||**BY THE PETITIONER AND RESPONDENT**| |||**DATED 2-6-2014.**| **RESPONDENT'S EXHIBITS : NIL.** O.P.(C) Nos.899 & 1110 of 2017 & 10 W.P(C) No.37446 of 2017 ## **O.P.(C) No.1110 of 2017** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** ## **EXHIBIT P1** **TRUE COPY OF THE AGREEMENT DATED 02.08.2016 BETWEEN THE 1ST RESPONDENT AND THE PETITIONER.** **EXHIBIT P2** - **TRUE COPY OF THE PLAINT IN OS.NO. 1/2017 ON THE FILE OF THE SUB COURT, SULTHAN BATHERY.** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION IA.NO. 7/2017 IN OS.NO. 1/2017 ON THE FILE OF THE SUB COURT, SULTHAN BATHERY.** - **EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 06.02.2017 FILED BY THE 1ST RESPONDENT IN EXT P3 APPLICATION.** - **EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 06.02.2017 FILED BY THE 2ND RESPONDENT IN EXT.P3 APPLICATOIN.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 17.02.2017 IN IA.NO. 7/2017 IN OS.NO. 1/2017 ON THE FILE OF THE SUB COURT, SULTHAN BATHERY.** **EXHIBIT P7** **TRUE COPY OF THE AGREEMENT DATED 18-12-2017.** **RESPONDENT'S EXHIBITS : NIL.** O.P.(C) Nos.899 & 1110 of 2017 & 11 W.P(C) No.37446 of 2017 ## **W.P(C) No.37446 of 2017** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXHIBIT P1 TRUE COPY OF THE 'PATTA ASSIGNMENT DEED' NO.647/2017 OF S.R.O KALPETTA.** **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 05.06.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 31.07.2017 IN WRIT PETITION NO.22887/2017 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 21.3.2017 IN OP(C) NO.1110/2017 OF THE HON'BLE HIGH COURT OF KERALA.** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 07.11.2017 ISSUED BY THE 3RD RESPONDENT TAHSILDAR VYTHIRI.** ## **RESPONDENT' S EXHIBITS :** **EXHIBIT R4(a) : COPY OF THE AGREEMENT DATED 18-12-2017.**