P. P. Tony v. Village Officer, Avinissery Village & Tahsildar, Thrissur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940 WP(C).No. 1625 of 2019** ## **PETITIONER:** **P.P.TONY, AGED 46 YEARS, S/O. POULOSE, HOUSE NO.10/315, THRISSUR TALUK, THRISSUR-680012** **BY ADV. SRI.RAJIT** ## **RESPONDENTS:** **1 THE VILLAGE OFFICER, AVINISSERY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT-680 313 2 TAHSILDAR , TALUK OFFICE, THRISSUR-680001. SRI.M.R.DHANIL GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------- W.P.(C)No.1625 of 2019 --------------------------------Dated this the 18[th] day of January, 2019 J U D G M E N T The petitioner is aggrieved by the refusal on the part of the respondents in granting mutation, transfer of registry and acceptance of basic land tax, even though his predecessor/vendor from whom he had purchased the property was paying basic land tax in respect of the said property and even though the said property was earlier mutated in the name of said predecessor. 2. The prayers in the above Writ Petition (Civil) are as follows:" _a) Issue a writ of mandamus or any other appropriate writ order or direction commanding the 1[st] respondent to accept land tax for property of the petitioner mentioned in property in Re-Sy.Nos.273/3 of SRO, Cherpu. b) Declare that the 1[st] respondent is liable to receive Land Tax and petitioner is bound to remit the Land tax from the petitioner in respect of the property in ReSy.Nos.273/ 3 of SRO Cherpu as shown in the Ext P1 Sale Deed. c) Grant such other relief deemed fit to this Hon'ble Court."_ 3. Heard Sri.Rajit, learned counsel appearing for the petitioner and Sri.M.R.Dhanil, learned Government Pleader appearing for the respondents. W.P.(C).No.1625/2019 **==> picture [19 x 9] intentionally omitted <==** 4. It is stated that one P.M.Johns, Managing Partner of a firm called Star Syndicate had purchased the subject property from one Jayagovindan, as per Ext.P-4 registered sale deed No.6592/95 of SRO,Cherpu. It is stated that the said property was duly mutated in the name of Sri.P.M.Johns and basic land tax was also accepted from him in respect of the subject property as evident from Ext.P-5 basic land tax receipt dated 21.1.2010 issued by the 1[st] respondent Village Officer. Ext.P-6 possession certificate dated 21.1.2010 was also duly issued by the 2[nd] respondent to Sri.P.M.Johns in respect of the subject property. Ext.P-7 certificate dated 21.1.2010 issued by the 2[nd] respondent would clearly show that no revenue recovery proceedings were pending in respect of Sri.P.M.Johns. Later Sri.P.M.Johns had sold the said property covered by Ext.P-4 to the petitioner as per Ext.P-1 registered sale deed No.2498/I/2010 dated 20.8.2010. It is stated that the subject property covered by Ext.P-1 is having an extent of 34.40Ares comprised in Re-Sy.No.273/3 of Avinissery Village, Thrissur Taluk, Thrissur Revenue District. 5. Pursuant to the purchase made by the petitioner as per W.P.(C).No.1625/2019 ..4.. Ext.P-1 registered sale deed, he had submitted Ext.P-3 application dated 3.4.2017 before the respondents for grant of mutation, transfer of registry and acceptance of basic land tax from the petitioner in respect of the subject property. Though the said application was submitted as early as on 3.4.2017 no effective action was done by the respondents. Thereafter this constrained the petitioner to submit Ext.P-8 petition dated 17.7.2017 before the 2[nd] respondent under Right to Information Act, 2005 (RTI Act) seeking answer to specific queries as to the reasons for not acting upon the request for mutation, transfer of registry, etc. The Public Information Officer, attached to the 1[st] respondent Village Office has now issued Ext.P-9 reply dated 2.8.2017 to the queries raised in Ext.P-8 petition under the RTI Act and paras 2 to 13 thereof reads as follows. “ 2. പപപോക്കുവരവവിനന് വവിപധേയമപോയ സ്ഥലലം വവില്ലജന് ററെപകപോർഡന് സുകൾ എനവിവ പരവിപശപോധേവിക് **ക** ു യലം, തഹസവിൽദപോർകന് റെവിപപപോർടന് നലവിയവിട്ടുള്ളതുമപോണന്. റെവിപപപോർടവിറന്റെ പകർപന് ( 2 പപജന്, 2x2 = 4 രൂപ) ഫഫീസന് ഒടുകവി ലഭഭ്യമപോകപോവുനതപോണന്. 3. റെഫീസർപവ്വേ നമ്പർ 273/3 ൽ 1.5260 റഹക്ടർ ഭൂമവിയപോണന് ഉള്ളതന്. ടവി അപപക സ്ഥലലം റമപോത്തമപോയവി കപോടുപവിടവിചന് കവിടക്കുനതവിനപോലലം, സ്ഥലലം അതവിർത്തവി തവിരവിച്ചു ഇടവിടവില്ലപോത് **ത** വിനപോലലം വഹകൾ W.P.(C).No.1625/2019 ..5.. - തവിരവിച്ചറെവിയപോൻ കഴവിഞവിടവിലപോത് **ത** പോണന് . - 4. ഉണന്. ഉത്തരലം നമ്പർ 2 ൽ പ്രതവിപപോദവിച്ചതന് പ്രകപോരലം അനുവദവിക്കുനതപോണന്. - 5. തഹസവിൽദപോർകന് റെവിപപപോർടന് സമർപവിച്ചവിട്ടുള്ളതപോണന്. 6. അപപകകറന വപോകപോൽ അറെവിയവിച്ചതവിറന തുടർന, അപപകകപനപോറടപോപലം 4/7/2011നന് സ്ഥലലം പരവിപശപോധേന നടത്തവിയവിട്ടുള്ളതപോണന്. 7. നവിലവവിൽ പകപോടതവി പകസുകൾ വവില്ലജന് പരഖകൾ പരവിപശപോധേവിച്ചതന് പ്രകപോരലം കപോണുനവില്ല എനപോൽ തൃശൂർ ജവില്ലപോ പകപോടതവിയറട CMA 92/2010/TA2686/10 എന സപോറ്റസന് പകപോ ഉത്തരവന് ലഭഭ്യമപോയവിട്ടുള്ളതപോണന്. 8. സർപവ്വേ/സബന് ഡവിവവിഷനവിൽ റമപോത്തലം ഭൂമവി കകമപോറ്റലം റചയപമ് **പ** ൾ വവില്ലജന് ഓഫഫീസറലം, സബന് ഡവിവവിഷൻ റചയന പകസുകളവിൽ (റമപോത്തമപോയവി വപോങവിയവിറല്ലങവിൽ) തഹസവിൽദപോറമപോണന് പപപോക്കുവരവന് റചയനതന്. 9. അപപക വഹകൾ റവറമ് **പ** ടലം എന വവിഭപോഗത്തവിൽ ഉൾറപടതപോണന്. വഭ്യക്തമപോയ അതവിർത്തവികൾ ഇല്ലപോത് **ത** വിനപോലലം കപോടുപവിടവിചന് കവിടക്കുനതവിനപോലലം, വഹകൾ തവിരവിച്ചറെവിയപോൻ കഴവിയപോത് **ത** വിനപോൽ പമൽ ഉത്തരവവിനപോയവി തഹസവിൽദപോർകന് റെവിപപപോർടന് നലവിയവിട്ടുള്ളതപോണന്. 10. സർപവ്വേ/സബന് ഡവിവവിഷനവിലള്ള റമപോത്തലം ഭൂമവി കകമപോറ്റലം വരുപമ് **പ** ഴപോണന് വവില്ലജന് ഓഫഫീസർ പപപോക്കുവരവന് റചയനതന്. 11. സബന് ഡവിവവിഷൻ വരുപമ് **പ** ഴപോണന് തഹസവിൽദപോർ പപപോക്കുവരവന് റചയനതന്. 12. തഹസവിൽദപോർകന് റെവിപപപോർടന് സമർപവിച്ചവിട്ടുള്ളതപോണന്. 13. 273/3 ൻററെ (1.5260 റഹക്ടർ) നവിർദവിഷ്ട ഫഫീസന് (450 + 56) ഒടുകവി ലഭഭ്യമപോകപോവുനതപോണന്. . ” 6. It is very interesting to note that even till date no formal letter has been issued by any of the respondents to the petitioner stating the grounds on which they proposed to refuse the request of the petitioner or as to any other valid reasons for the delay in W.P.(C).No.1625/2019 ..6.. consideration of his request in Ext.P-3 application. On the other hand the petitioner has been compelled to invoke the proceedings under RTI Act as per Ext.P-8 and information has been now given to him as per Ext.P-9. It is trite that information conveyed in Ext.P-9 RTI reply need not necessarily be authentic as far as the official decision making process concerned and therefore it is highly improper on the part of the respondents to have kept their “stoic silence” in not responding to the petitioner at least by showing the courtesy of sending a letter intimating him the subsequent developments in the matter inspite of the fact that Ext.P-3 application has been submitted as early as on 3.4.2017. It is quite sad to note that a citizen like the petitioner has been compelled to invoke remedy under RTI Act in order to know the outcome of the decision making process in respect of a statutory application. Even Ext.P-9 reply has been given as late as on 2.8.2017, even though the application of mutation has been submitted as early as on 3.4.2017. 7. Be that as it may, some of the grounds that are disclosed in Ext.P-9 is to the effect that the subject landed property in W.P.(C).No.1625/2019 **==> picture [18 x 9] intentionally omitted <==** question is having lot of bush and it is quite difficult to conduct survey and measurement. Further mention is made in para 7 of Ext.P-9 that an order has been granted in IA.No.2686/2010 in CMA No.92/2010 on the file of the District Court, Thrissur directing maintenance of status quo. No details are given in Ext.P-9 about the said matter in CMA No.92/2010 as to whether the said order said to have been issued in IA.No.2686/2010 is now pending. Further it is also stated in para 7 of Ext.P-9 that as per the verification of the records it is seen that no litigative matters before any Courts are pending presumably in relation to the subject property, etc. Hence it is quite confusing as to what is the relevance of the order in CMA No.92/2010 to the subject property. 8. It is by now too elementary that mere pendency of civil suits, revenue recovery proceedings, attachment proceedings in cases as in the instant one will not be sufficient justification for revenue officials like the respondents to refuse grant of mutation, transfer of registry and acceptance of basic land tax in terms of the provisions contained in the Kerala Land Tax Act, 1961 and Kerala Land Tax Rules, 1972 and Transfer of Registry Rules, 1966. If the W.P.(C).No.1625/2019 **==> picture [20 x 9] intentionally omitted <==** respondents have any doubt about that this Court would like to only observe that it has been held in a catena of rulings of various High Courts and the Apex Court in decision as in _**Tulasibhai v. State of Kerala [2010 (4) KLT 215], Nevin Raju v. S.Basheer & others [2015 (3) KLJ 197] etc**_ that pendency of civil suits, revenue recovery proceedings, attachment proceedings, etc will not be sufficient ground for refusing the request of mutation and acceptance of basic land tax as there are no provisions in Transfer of Registry Rules which interdict the competent revenue officials like the respondents from accepting basic land tax and granting mutation on account of pendency of such matters. Therefore the so called pendency of a interim order in civil miscellaneous appeal as referred to in Ext.P-7 is not relevant or germane for deciding the issue as to mutation, acceptance of basic land tax, etc in cases like the instant one. 9. Sec.5 of Kerala Land Tax Act, 1961 mandate that competent revenue officials like the respondents are obliged in law to collect tax from the land holders as understood in Sec.3(3) of the W.P.(C).No.1625/2019 ..9.. said Act. Sec.3(3) of the Kerala Land Tax Act, 1961 reads as follows. - “ _“land holder” means, -_ - _(a) in relation of 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. ”_ 10. In cases as in the instant one, where the vendor from whom basic land tax has been accepted, then the scenario covered by clauses (a), (b) and (c) will not be attractive. In the instant case, the petitioner's specific case is that the property was duly mutated in favour of predecessor Sri.P.M.Johns and basic land tax has also been accepted from him as evident from Ext.P-5, if that be so the said predecessor/vendor of the petitioner is the registered land holder as understood in Sec.3(3)(d). When the registered land holder alienates the property, then the assignee of the said property like the petitioner, would step into the shoe of “land holder” as understood in Sec.3(3) in which case, the competent W.P.(C).No.1625/2019 **==> picture [24 x 7] intentionally omitted <==** revenue officials are obliged by the mandate of Sec.5(2) r/w Sec.3(3) to accept land tax from such assignees of registered land holders. Sec.4 of the Kerala Land Tax Act, 1961 mandates that notwithstanding anything in any enactment, grant, deed or other transaction, the arrangement under the said Act for the levy of basic tax shall be deemed to be a general revenue settlement of the State. The Transfer of Registry Rules, 1966 has not been framed under the enabling provisions of any parent Act and so it is a non statutory rule. Going by the mandate of Sec.4 of the Kerala Land Tax Act, the general revenue settlement as mandated by the said Act will prevail over any other arrangement and therefore it is right that even the provisions of the Transfer of Registry Rules will be subservient to the provisions of the Kerala Land Tax Act and Rules framed thereunder. Rule 4 of the Kerala Land Tax Rules, 1972 framed under Sec.20 of the Kerala Land Tax Act mandate that a register called the Basic Tax Register (BTR) shall be maintained in all the Village and Taluk Offices. So in a case where the registered land holder alienates the property or where the registered land holder dies, then the assignee/legal W.P.(C).No.1625/2019 **==> picture [22 x 7] intentionally omitted <==** representative of the registered land holder as the case may be will stand in the shoe of land holder in which case land tax should be accepted from him and necessary entries should be made by the competent revenue officials in the Basic Tax Register (BTR) as envisaged in Rule 4 of the Kerala Land Tax Rules, 1972. 11. Only exceptional cases could be where there are orders passed by competent Courts interdicting the competent revenue authorities concerned from accepting basic land tax in respect of the subject property concerned or where the State authorities by virtue of powers conferred under the special enactments or any of the enactments have proceeded against the property and it has been finally determined that the property does not belong to the claimed land holder etc and that it belong to the State, etc. Barring such exceptional scenarios, the flow and consequence of provisions of the Kerala Land Tax Act and Rules is that land tax should be accepted from such “land holders” as understood in Sec.3(3). Otherwise the competent revenue officials will be abdicating their duties and going against the mandate of the Kerala Land Tax Act more particularly Sec.5 (2) thereof which would be nothing but W.P.(C).No.1625/2019 ..12.. illegal dereliction of duties as it causes loss of revenue to the public exchequer. Therefore if as a matter of fact the petitioner's vendor was the registered land holder in respect of the said property, then the assignee of said vendor would stand in the shoe of land holder as understood in Sec.3(3). 12. Accordingly it is ordered that the 1[st] respondent will take up the request made by the petitioner in Ext.P-3 application for acceptance of basic land tax and will grant it, if it is otherwise in order. It is hoped and expected that the 1[st] respondent will not unnecessarily make again run the petitioner from pillar to post and would discharge his solemn duties and responsibilities cast on him as per the mandatory provisions contained in the Kerala Land Tax Act and Kerala Land Tax Rules. 13. Since ordinarily this Court would have issued consequential direction in the matter of grant of mutation, however since the facts projected in Ext.P-9 suggest that there are lot of bushes in the property and that survey and measurement of the property may not be an easy affair, this Court would direct the petitioner to immediately ensure that necessary steps are taken to W.P.(C).No.1625/2019 **==> picture [24 x 9] intentionally omitted <==** remove all such bushes and make the property fit for survey and measurement if the respondents so require. Since the petitioner has made a composite request not only for acceptance of basic land tax and also for mutation, the petitioner may make a separate formal application for grant of mutation and transfer of registry in accordance with the provisions contained in the Transfer of Registry Rules. The competent authority among the respondents will immediately consider the said request and if they deem it appropriate, survey and measurement is required then it shall be ensured that survey and measurement of the subject property is got effected with the aid and assistance of the Taluk Surveyor concerned or any other competent Surveyor with due prior notice to the petitioner and take further steps in that regard and if they so require, the petitioner may file a proper application for survey, measurement and demarcation of the boundaries of the property in accordance with the provisions contained in the Kerala Survey and Boundaries Act and Rules framed thereunder. In such a situation, the 2[nd] respondent will ensure that immediate action is taken to get his property surveyed measured and demarcated with W.P.(C).No.1625/2019 **==> picture [24 x 9] intentionally omitted <==** the aid and assistance of the Taluk Surveyor concerned and with due prior notice to the petitioner and then will take steps to finalise the request for such survey measurement and demarcation of the boundaries. The respondents will also ensure that the request for grant of mutation is also considered and granted, if it is otherwise in order. Decisions in the abovesaid matters shall be rendered by the respondents in compliance with directions and findings made by this Court herein above. In such a scenario, the abovesaid steps for survey, measurement as well as mutation process etc, should be duly completed as aforestated, without much delay preferably within a period of 2 months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C).No.1625/2019 ..15.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.2498/1/2010 DATED 20.8.2010** **EXHIBIT P2 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 03.03.2017** **EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 03.04.2017** **EXHIBIT P4 TRUE COPY OF THE SALE DEED NO.6592/95** **EXHIBIT P5 TRUE COPY OF THE TAX RECEIPT DATED 21.01.2010** **EXHIBIT P6 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED TO MR.JOHNS** **EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO MR.JOHNS STATING THAT THERE IS NO R.R. PROCEEDINGS AGAINST THE PROPERTY COVERED BY EXT.P4 DEED** **EXHIBIT P8 TRUE COPY OF THE RIGHT TO INFORMATION APPLICATION OF THE PETITIONER DATED 17.07.2017** **EXHIBIT P9 TRUE COPY OF THE REPLY LETTER DATED 02.08.2017 OF THE 1ST RESPONDENT**