Savithri v. District Collector, Malappuram and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944 W.P.(C) NO. 9019 OF 2022** ## **PETITIONER:** ## **SAVITHRI,** **AGED 68 YEARS, W/O. LATE SUBRAMANIAN NAMBIDI, RAYIRIMANGALAM AMSOM DESOM, KATTILANGADI, TANUR P.O, MALAPPURAM DISTRICT, PIN - 676 302.** **BY ADVS. P.T.SHEEJISH P.K.PURUSH HARIKIRAN PRAVEENKUMAR P. VARNIBHA.T A.ABDUL RAHMAN JASHITHA VIJAYAN AKHILA SRIDHARAN STEPHY GRACE RAJ P.P.RAVOOF RETHIN R. PARVATHY S.KRISHNAN** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, MALAPPURAM, COLLECTORATE, UP HILL, MALAPPURAM DISTRICT, KERALA - 676 504.** - **2 THE THAHSILDAR-LAND RECORDS, TALUK OFFICE, CIVIL STATION, TIRUR, MALAPPURAM DISTRICT, KERALA, PIN - 676 101.** 2 W.P.(C) No.9019 of 2022 - **3 THE VILLAGE OFFICER, OZHUR VILLAGE, OZHUR, MALAPPURAM DISTRICT - 676 307.** - **4* THE CHAIRMAN SREE MAHA VISHNU KSHETHRAM TRUST BOARD, ERNALLUR, OZHUR, TIRUR, MALAPPURAM, PIN-676 302.** - **5** MALABAR DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, HOUSEFED COMPLEX, ERANHIPPALAM P.O, KOZHIKODE DISTRICT, PIN-673 006.** - ***IMPLEADED AS PER ORDER DATED 06.07.2022 IN I.A.NO.1 OF 2022.** ****IMPLEADED AS PER ORDER DATED 13.12.2022 IN I.A.NO.2 OF 2022.** **R1-R3 BY SRI S.RAJMOHAN- SR.GOVERNMENT PLEADER R4 BY ADV P.RAMACHANDRAN** **R5 BY SRI R.LAKSHMI NARAYAN- STANDING COUNSEL , MALABAR DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.P.(C) No.9019 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioner filed this Writ Petition, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking a relief that she and the coowners of the property covered by Ext.P1 sale deed be allowed to pay land tax after setting aside Ext.P9 order dated 30.04.2021 passed by the 2[nd] respondent-Tahsildar. Further relief claimed is a writ of mandamus commanding respondents 1 and 2 to reconsider the application of the petitioner to accept land tax. 2. The petitioner would claim that 38 cents of property comprised in Re-survey No.28/1 of Ozhur village in Malappuram District belongs to her family and as per Ext.P1, she along with other co-owners have become the owners. They are in absolute possession and enjoyment of the same. There is a mistake in the description of the survey number in the document. Though it is mentioned as 28/4, the actual survey number is 28/1. Since the revenue authorities did not allow the petitioner to pay land tax, she submitted Ext.P3 4 ## W.P.(C) No.9019 of 2022 representation to the 2nd respondent. Since there occurred delay in taking action on the representation, she filed W.P.(C) No.12878 of 2020. This Court as per judgment dated 07.10.2020, Ext.P5, directed the 2nd respondent to take a decision on merits in Ext.P3 within a period of two months. The request of the petitioner was not favourably considered by the 2[nd] respondent. As per Ext.P6 dated 25.05.2021, the request of the petitioner was declined. She filed W.P.(C) No.19427 of 2021 before this Court challenging the said order. As per Ext.P8 judgment dated 05.10.2021, Ext.P6 order was set aside and the 2[nd] respondent was directed to take a decision in the matter afresh. It was observed that if, as a matter of fact, there is a mistake in the title deed of the petitioner with reference to survey number, steps in the matter may be taken as per law. The petitioner would contend that the 2[nd] respondent considered the matter again. In the meantime, additional 4[th] respondent-Devaswom staked a claim that the property comprised in Sy.No.28/1 of Ozhur Village is part of 40 cents of land belonging to the Temple. The 4[th] respondent also sought permission to remit land tax 5 W.P.(C) No.9019 of 2022 for the said property. The 2[nd] respondent, after considering the rival contention, and after giving an opportunity of being heard to both sides, as per Ext.P9 order dated 13.12.2021, ordered as follows: "ഒഴ�ർ സർവ� നമർ `28/1` ൽ വ�ട `38` വസൻറ�ഭ�മ�ക� ന�ക�ത� അട��ക�നത�ന�യ� ഹരജ�ക�ര�യ�യ ശ!"മത� `.` സ���ശത� എന�ര�$ വ%യർമ�ൻ `,` ക�റ���ങര ശ!" മഹ���ഷ(� ക*ശത ശടസ�ക,�ർഡ�$ അക�* സമർപ�ചത�ൽ ഹർജ�ക�ര� ഹ�ജര�ക�യ ആധ�രങൾ `,` ല�ൻഡ� ടശട,5�ണൽ �ടയ$ എന" കരഖകകള�വലല�$ സർവ� നമർ `28/4` ആവണന�$ സർവ� നമർ `28/1` ൽവപട ഭ�മ�യ�വട ഉടമസ���ക!$ വതള�യ�ക�ന കരഖകവള�ന�$ ഹ�ജര�ക� യ�ട�ല�തത�വണന�$ ക�ണ�ന� `.` ഒകര ഭ�മ�ക�ണ� ഇര� ക*�കള�$ അ�ക�! ��ദ$ ഉനയ�ക�നത� എനത�ന�ല�$ ഉടമസ��ക�!$ `,` �ടയ സ�ധ�ത എന�� സ$,ന�ച തർക$ ത"ർകകണത� സ���ൽ കക�ടത� മ�കഖന ആകയ�ല�$ ഇര�ക*�കൾക�$ �ര�ത�ക�ധ�രമ�യ ഭ�മ�യ�വട ടക�!��$ അന�ഭ���$ വതള�യ�ക�ൻ സ�ധ�ച�ട�ല� തത�ന�ല�$ ഇര� ക*�കള�$ സമർപ�ച ന�ക�ത� അട��ക�നത�ന�ളള അക�* ന�രസ�ച� വക�ണ� ഇത�ന�ൽ ഉതര��ക�ന� `.”` 3. When this matter came up for consideration before the learned Single Judge, further action pursuant to Ext.P9 order was directed to be deferred. The Temple, which staked 6 ## W.P.(C) No.9019 of 2022 claim over the property was directed to be impleaded. Accordingly, as per the order dated 06.07.2022 in I.A.No.1 of 2022, the additional 4[th] respondent-Temple was impleaded. Later, as per the order in I.A.No.2 of 2022, Malabar Devaswom Board was impleaded as additional 5[th] respondent. The matter was thereafter placed before us since the dispute pertains to Devaswom land. 4. Additional 4[th] respondent filed a detailed counteraffidavit. It is contended that as evidenced from Ext.R4(a) Adangal extract, the property comprised in Sy.No.28/1 of Ozhur Village belongs to the Deity of Sree Karuvankulangara Maha Vishu Temple. When the petitioner sought permission to pay tax with respect to the said property, the matter was verified by the Revenue authorities and it was found that the property covered by the title deed of the petitioner is that comprised in Sy.No.28/4 and in fact the said property is the Temple pond. The petitioner or other co-owners do not have right or title to the property comprised in Sy.No.28/1 or 28/4. The claims of the petitioner that she along with the other titleholders are in possession of the property in Sy.No.28/1 and 7 ## W.P.(C) No.9019 of 2022 the revenue authorities were convinced after verification that the said property has been in their possession are vehemently denied by the 4[th] respondent. Accordingly, the 4th respondent sought to dismiss the said petition. Exts.R4(a) to R4(g) were placed on record by the 4[th] respondent. 5. Heard the learned counsel appearing for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3, the learned counsel for the 4[th] respondent and the learned Standing Counsel for the Malabar Devaswom Board. 6. The learned counsel for the petitioner would contend that in the light of the direction of this Court in Ext.P8 judgment, the 2[nd] respondent should have accepted tax for the property comprised in Sy.No.28/1 of Ozhur Village from the petitioner and for that purpose, the documents should have been corrected; whereas, the 2[nd] respondent without applying mind and considering the materials produced, passed Ext.P9 order, thereby rejecting the claim of the petitioner. The specific case of the petitioner is that going by the description of the property in Ext.P1, which is a sale deed, and in view of 8 ## W.P.(C) No.9019 of 2022 the fact that the petitioner along with other assignees under Ext.P1 have been in possession of property comprised in Sy.No.28/1 for decades together, it is their legitimate right to pay land tax for that property. The learned counsel placed reliance in this regard on the decision in **S.Rajkumar and others v. Tahsildar, Devikulam and others [2020 (3) KHC 270** ], wherein it was held that when the landholder offers to pay the basic tax due on a land, the Officer entrusted with the duty to collect the same has no authority to refuse it. Refusal to accept tax by the revenue officials on the premise of some pending enquiry or some dispute as to the title which has not even been raised before any authority competent to decide such a dispute is an abdication of the duty. It was further held that, as long as there is a valid patta, the revenue authorities cannot refuse to accept land tax on the ground that a dispute is pending on the title of the property. 7. The learned counsel appearing for the 4[th] respondent, on the other hand, would contend that even though the property covered in Ext.P1 is that comprised in Sy.No.28/4, the claim of the petitioner is for permission to pay 9 ## W.P.(C) No.9019 of 2022 land tax for the property comprised in Sy.No.28/1 and on no account that claim can be allowed. The case of the petitioner is that, as a matter of fact, the property in Sy.No.28/1 is a temple site situated adjoining the Temple and this is a property exempted under Section 3(1)(x) of the Kerala Land Reforms Act, 1963. The 4[th] respondent also would raise a contention; more categorically before the 2[nd] respondent as could be seen from Ext.P9, that the previous Ooralan of the Temple illegally had created documents regarding the property set apart for the Temple, and therefore no title to the property can legally be claimed by the petitioner. 8. In W.P.(C) No.19427 of 2021 the claim of the petitioner was that she was not permitted to pay land tax for the property comprised in Sy.No.28/4 of Ozhur Village. As seen from Ext.P8 judgment there was a contention for the petitioner that there was a mistake in the description of survey number in the title document. It was in the said circumstances, this Court as per Ext.P8 directed the 2[nd] respondent to take steps for rectification of records with reference to the survey number of the property upon which the petitioner raised a claim. 10 ## W.P.(C) No.9019 of 2022 9. Ext.P9, in fact, originated on Ext.P3 representation. The demand of the petitioner in it as well as the subsequent representation, Ext.P4 submitted on 15.07.2020 is that the petitioner and her co-owners should be permitted to pay tax for 38 cents of property covered by Ext.P1. The petitioner herself stated that the survey number mentioned in Ext.P1 is incorrect. When there is a mistake in a title deed, it is within the province of its executant to rectify it and not for the Revenue authorities. That apart, as against the claim of the petitioner that she and other co-owners are the owners in possession of 38 cents of land comprised in Re-survey No.28/1 and mentioning of survey number as 28/4 in Ext.P1 is only a mistake, the 4[th] respondent denies the said claim. The 4[th] respondent further claims that the 4[th] respondentDeity is the owner and in possession of the property comprised in Sy.No.28/1 of Ozhur Village. The 4[th] respondent places reliance in that regard on Ext.R4(a), the Adangal extract. In the light of the said rival contentions, the question emerges is not merely relating to a mistake in a survey number mentioned in Ext.P1. The question is relating to the 11 ## W.P.(C) No.9019 of 2022 title and possession of the property in question; be it in Sy.No.28/1 or 28/4. Such a question can be decided only by a civil court and not by the revenue authorities. 10. The contention of the petitioner is that the 2[nd] respondent abdicated his authority under Section 5 of the Kerala Land Tax Act, 1961 by refusing to collect tax from the petitioner for the property in question. As per Section 5 of the Land Tax Act, the competent authority is obliged to collect land tax from the land holder. “Land holder” is defined in Section 3(3) of the Land Tax Act. Clauses (a), (b) and (c) relate to the tenancy holders of the land and clause (d) of Section 3(3) relates to registered holders of the land. It states about collection of tax from the registered holders of land. A registered holder shall be the person indisputably the person holding a particular property under the registered deed. The petitioner claims that the property she along with other co-owners holds is in Sy.No.28/1; whereas description in Ext.P1 title deed relates to the property in Sy.No.28/4. The question then relates to one of title and not merely regarding entitlement to pay tax for a land under Section 5 of the Kerala Land Tax Act. 12 ## W.P.(C) No.9019 of 2022 11. In such circumstances, we are of the view that the reliefs claimed by the petitioner in this Writ Petition is not liable to be allowed. The petitioner has to approach the civil court in order to redress her grievance raised in this Writ Petition. Therefore, the Writ Petition is disposed of with the aforesaid observations, however, leaving open the legal and factual contentions of the respective parties. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 13 W.P.(C) No.9019 of 2022 ## **APPENDIX OF WP(C) 9019/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **THE TRUE COPY OF THE TITLE DOCUMENT NO. 1327/1983 OF SRO TANUR DATED 30.06.1983.** - **EXHIBIT P2 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 12.03.2020 ISSUED BY THE REGISTRATION DEPARTMENT.** - **EXHIBIT P3 TRUE COPY OF REPRESENTATION DATED 20.03.2020 SUBMITTED BY THE PETITIONER BEFORE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 16.07.2020 SUBMITTED BY PETITIONER BEFORE 2ND RESPONDENT.** - **EXHIBIT P5 THE TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN WPC NO. 12878/2020 DATED 07.10.2020** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 25.05.2021 PASSED BY THE 2ND RESPONDENT.** - **EXHIBIT P7 THE TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER'S ADVOCATE BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P8 THE TRUE COPY OF THE ORDER OF THIS COURT IN WPC NO. 19427/2021 DATED 05.10.2021.** **EXHIBIT P9** **THE TRUE COPY OF THE ORDER DATED 13.12.2021 PASSED BY THE 2ND RESPONDENT.** 14 ## W.P.(C) No.9019 of 2022 ## **RESPONDENT EXHIBITS** **EXHIBIT R4A** **TRUE COPY OF THE ADANGAL EXTRACT IN RESPECT OF RE.SY.28/1 OF OZHUR VILLAGE.** **EXHIBIT R4B** **TRUE COPY OF THE LETTER DATED 6.9.2013 FROM THE PRESIDENT MALABAR DEVASWOM BOARD TO THE 1ST RESPONDENT WITH THE LETTER FROM THIS RESPONDENT.** **EXHIBIT R4C** **TRUE COPY OF THE LETTER DATED 12.11.2013 FROM THE ASSISTANT COMMISSIONER MALABAR DEVASWOM BOARD TO THE CHAIRMAN SREE KURUVANKULANGARA MAHA VISHNU TEMPLE.** **EXHIBIT R4D** **TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT DATED 27.3.2014 TO THE PUBLIC INFORMATION OFFICER, COLLECTORATE, MALAPPURAM BY THE ADDITIONAL 4TH RESPONDENT AND THE REPLY LETTER FROM THE STATE PUBLIC INFORMATION OFFICER, COLLECTORATE MALAPPURAM DATED 25.4.2014** ## **EXHIBIT R4E** **TRUE COPY OF THE LETTER DATED 6.7.2015 FROM THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD TO THE CHAIRMAN, SREE KURUVANKULANGARA MAHA VISHNU TEMPLE** **EXHIBIT R4F** **EXHIBIT R4G** **TRUE COPY OF THE LETTER DATED 31.8.2015 FROM ADDITIONAL 4TH RESPONDENT TO THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD. TRUE COPY OF THE LETTER DATED 4.8.2020 BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.**