SUHARABI v. THE DISTRICT COLLECTOR, MALAPPURAM; THE TAHSILDAR, KONDOTTY; THE VILLAGE OFFICER, PALLIKKAL VILLAGE; MOHAMMED SHA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940** **WP(C).No. 3324 of 2019** ## **PETITIONER/S:** **SUHARABI, AGED 38, W/O MUHAMMEDKOYA, KUNNATHODI VEEDU, MELANGADI, CALICUT AIRPORT P.O., KONDOTTY AMSOM, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAKESH** ## **RESPONDENT/S:** |**1**|**THE DISTRICT COLLECTOR,**| |---|---| ||**MALAPPURAM-676505.**| |**2**|**THE TAHSILDAR,**| ||**KONDOTTY, MALAPPURAM DISTRICT-673638.**| |**3**|**THE VILALGE OFFICER,**| ||**PALLIKAL VILLAGE, MALAPPURAM DISTRICT-676517.**| |**4**|**MOHAMMED SHA, AGED 59 YEARS**| ||**S/O SAID MUHAMMED,**| ||**PERUNKOLLAMKUZHI HOUSE, KARIPOOR P.O.,**| ||**KUMMINIPARAMBA, MALAPPURAM DISTRICT-673647.**| ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No. 3324 of 2019** ## **ALEXANDER THOMAS, J** . ---------------------W.P(C).No.3324 Of 2019 -----------------------Dated this the 5[th] day of February, 2019. ## **J U D G M E N T** ## **The prayers in the above Writ Petition** ## **(Civil) are as follows:** _“i) Issue a writ of mandamus or any other appropriate writs, orders of directions directing the 3[rd] respondent to receive land tax for the property comprised in Survey No.68/1 and 68/2 of Pallikkal Village, having extent 7.9 cents forthwith, from the petitioner;_ _ii) Declare that the refusal to accept land tax for the property comprised in Survey No.68/1 and 68/2 of Pallikkal Village, having extent 7.9 cents is illegal and that Exhibits P2 and P3 are not an impediment to accept tax;_ _iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ ## **2. Heard Sri.K.Rakesh, learned counsel for** **the petitioners and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1 to 3. In the nature of the orders that is proposed to be passed in this petition notice to the 4[th] respondent will stand dispensed with.** ::3:: **WP(C).No. 3324 of 2019** **3. The petitioner had purchased the subject property from her husband on the basis of registered sale deed and the said property has been duly mutated in her name and land tax has been accepted from her till the year 2017 as evident from Ext.P-1 land tax receipt dated 4.1.2017. That, claiming a way through the boundary of the petitioner's property, the contesting R-4 has filed a civil suit as O.S.No.370/2011 wherein the trial court has rendered Ext.P-2 judgment and Ext.P-3 decree in the said Original Suit restraining the petitioners from trespassing into the plaint schedule property therein. Exts.P-2 & P-3 was subject to appeal by the petitioner and after its dismissal, a Second Appeal as R.S.A.No.1004/2018 has been instituted by the petitioner, which is pending on the file of this Court, arising out of the said civil proceedings. It is the specific case of the petitioners that the title of the petitioner has never been subjected to any** ::4:: **WP(C).No. 3324 of 2019** **challenge whatsoever in the civil proceedings and R-4 is claiming undisputed way through the boundary of the petitioner's property. However, the 3[rd] respondent is not accepting the land tax in respect of the property on flimsy grounds. It is in the light of these aspects that the petitioner has filed the instant Writ Petition (Civil) seeking directions to the 3[rd] respondentVillage Officer to accept basic land tax from the petitioner in respect of the subject property comprised in Re.Sy.No.68/1 and 68/2 of Pallikkal Village.** **4. It is by now well established in various decisions of the Apex Court as well as various High Courts that pendency of revenue recovery attachment proceedings/civil proceedings as in the instant case will not be a legal bar in accepting basic land tax from the petitioner concerned as there are no provision contained in the Act prohibiting acceptance of basic land tax if such proceedings are pending. If the official** ::5:: **WP(C).No. 3324 of 2019** **respondents require any judicial authority in that regard, it will be apposite to bear in mind the various decisions of this Court as in** _**Thulasibahi v. State of Kerala**_ **, reported in 2010 (4) KLT 215,** _**Nevin Raju v. S.Basheer & ors.**_ **, reported in 2015 (3) KLJ 197, etc etc., that mere pendency of civil cases is not an impediment for effecting mutation and acceptance of basic land tax from the land holder as the provisions of the Transfer of Registry of Rules do not prohibit mutation in such circumstances. It has also been held by the Apex Court in** _**Sawarni v. Inder Kaur**_ **, reported in AIR 1996 SC 2823, that grant of mutation by itself does not create or extinguish title and nor has it any presumptive value on title and it only enables the person in whose favour mutation is ordered to pay the land tax to the authorities concerned, etc.** **5. In the instant case, it is beyond any dispute that the property has been duly mutated in favour of the petitioner and basic land tax has** ::6:: **WP(C).No. 3324 of 2019** **also been accepted from the petitioner and thandaper account number was also allotted to the petitioner by the 3[rd] respondent. Since that is the position, the petitioner is the registered land holder as conceived in Sec.3(3)(d) of the Kerala Land Tax Act, and going by the combined mandate of Secs.5(2) and 3(3), the 3[rd] respondent-Village Officer is obliged to accept basic land tax from the petitioner as she is the registered land holder as understood in Sec.3(3). The statutory obligation on the officials like the 3[rd] respondent is to accept basic land tax as mandated in Sec.5(2) of the abovesaid Act from such '** _**land holder**_ **' as conceived in Sec.3(3)(d). If competent officials refuse to mutate and collect basic land tax from parties like the petitioner it would amount to abdication of their statutory duties which is nothing but dereliction of their duties as it causes loss to the revenue to the public exchequer. 6. Accordingly, it is for the petitioner to file appropriate application for acceptance of** ::7:: **WP(C).No. 3324 of 2019** **basic land tax in respect of the subject property and may also make available the copies of plaint, written statement, judgment and decree in Ext.P-2 O.S.No.370/2011 as well as the judgment in the first appeal, etc. The petitioner may also implead the 4[th] respondent herein as a party in the application. The 3[rd] respondent will issue notice to the petitioner and 4[th] respondent and then will consider the request of the petitioner for acceptance of basic land tax and will also pertinently consider the issue as to whether any challenge has been mounted by the 4[th] respondent in the abovesaid civil proceedings or in the decree issued thereunder so as to disturb the boundary or title of the petitioner and what has been sought for is only restraining the petitioner from trespassing into the plaint schedule property of the 4[th] respondent herein, then there cannot be any controversy in acceptance basic land tax from the petitioner as far as the property of the petitioner is** ::8:: **WP(C).No. 3324 of 2019** **concerned. The 3[rd] respondent-Village Officer will hear both sides and will then pass appropriate orders in the matter in the light of the abovesaid observations made hereinabove. It is hoped and expected that the 3[rd] respondent should realise the heavy responsibility cast on his shoulders as per the mandate of Secs.3(3) and 5(2) of the Kerala Land Tax Act to ensure that land tax is accepted from the land holder concerned as envisaged in Sec.3(3). Orders in this regard should be duly passed by the 3[rd] respondent, within a period of 6 weeks from the date of receipt 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.** bkn/- ::9:: **WP(C).No. 3324 of 2019** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT ISSUED TO THE PETITIONER DATED 4.1.2017 BY THE 3RD RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN O.S.370/2011 OF THE MUNSIFF COURT, MANJERI DATED 18.2.2016** **EXHIBIT P3 TRUE COPY OF THE DECREE IN O.S.370/2011 OF THE MUNSIFF COURT, MANJERI DATED 18.2.2016**