High Court of KeralaSingle Judge2016-09-30Writ petition allowed. No costs. Tahsildar to a...

Sulfath v. Revenue Divisional Officer and Others

Case / Petition Number:WP(C).No. 25823 of 2016 (C)

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-09-30
Court Decision / Holding: Writ petition allowed. No costs. The petitioner shall file an application before the Tahsildar, who shall assess the tax due on the entire land in possession as garden land and make the necessary changes in the BTR based on assessment, after conducting a physical inspection with notice to the petitioner and providing opportunity of hearing. Final orders to be passed within one month from receipt of a certified copy of the judgment.
Final Disposition: Writ petition allowed. No costs. Tahsildar to assess and amend BTR as garden land after inspection and hearing within one month.

Parties to the Case

Appellants / Petitioners

Sulfath

Respondents

The Revenue Divisional Officer and the Sub Collector, Thrissur District, Thrissur
The Village Officer Kaipamangalam Village Office, Kaipamangalam, Thrissur
The Tahsildhar Kodungallur Taluk, Taluk Office, Kodungallur
The Secretary Department Revenue, Thiruvananthapuram
The District Collector, Thrissur

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.N. Manoj

Counsels for Respondents

• Sr. Government Pleader Sri. Renil Anto

Case Synopsis & Summary

Sulfath, the applicant, is in possession of about 21 cents of land in Kaipamangalam, Thrissur district, backed by Gift Deed No.3519/2015 and related documents. She seeks assessment of a pond that historically existed on the land and a fresh assessment of the entire land as garden land, effectively requesting correction of the Basic Tax Register (BTR). The land originally spanned two survey numbers (492/12 and 492/13); corrections after a Gift Deed showed 16.01 cents in 492/12 and 4.11 cents in 492/13, while the pond measured 2.850 cents. Although the petitioner paid tax on the total land, the BTR continued to describe 2.850 cents as a pond and treated it as unassessed. The Tahsildar submitted a report highlighting discrepancies between Ext.P2 and Ext.P1, noting that part of the pond lay in possession and was included in the petitioner’s land. The Government Pleader referred to exemptions in the Malabar Registration Act for ponds, which were allegedly repealed by the Kerala Repealing and Amendment Ordinance, 2005; the Kerala Land Tax Act, 1961 has since come into force, with Section 5 imposing basic tax on all lands. The court ultimately held that ponds exemption would not apply and directed that the land be taxed as garden land, with changes to the BTR after a physical inspection. The writ petition was allowed without costs, and a one-month timeline was prescribed for compliance with notice and hearing requirements.

Provisions of Law Cited

Kerala Land Tax Act, 1961 - Section 5Malabar Registration Act, 1895Kerala Repealing and Amendment Ordinance, 2005

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the pond, originally part of Survey Nos. 492/12 and 492/13 and now largely filled up and developed as pucca land, should be taxed accordingly as garden land. She asserts tax corrections in the Basic Tax Register (BTR) and requests reassessment to reflect the land’s true description and use. The petitioner argues that the dispute arises from misdescription in Ext. P2 and Ext. P1 corrections and seeks a physical inspection to amend the BTR and assess tax for the pond as part of garden land.

Contentions of Respondents

The respondents (State authorities) rely on the repeal of the Malabar Registration Act via Kerala Repealing and Amendment Ordinance, 2005 and the bringing into force of the Kerala Land Tax Act, 1961. They contend ponds were exempt under the Malabar Act; however, the exemption was repealed, and the Land Tax Act imposes basic tax on all lands, including ponds that have been converted or filled into garden land. A Tahsildar report is prepared to align the tax with current land use, and the department asserts the need for correction in BTR and tax assessment.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Venkata Reddy and others v. State of Andhra Pradesh	1985 (3) SCC 198	Positive	The judgment cites this Supreme Court decision to support the view that repeal of the Malabar Act can be treated as effective, aligning with the interpretation used by the court in respect of the Malabar Act repeal.

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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 K.VINOD CHANDRAN** ## **FRIDAY, THE 30TH DAY OF SEPTEMBER 2016/8TH ASWINA, 1938** ## **WP(C).No. 25823 of 2016 (C)** **-------------------------------------------** **PETITIONER(S) : --------------------------** **SULFATH, W/O. PANAMBATH KANDI NOUSHAD, KAIPAMANGALAM VILLAGE & DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT.** ## **BY ADV. SRI.T.N.MANOJ** - **RESPONDENT(S) : ----------------------------** **1. THE REVENUE DIVISIONAL OFFICER AND THE SUB COLLECTOR TRISSUR DISTRICT, TRISSUR - 680 001.** **2. THE VILLAGE OFFICER KAIPAMANGALAM VILLAGE OFFICE, KAIPAMANGALAM, TRISSUR - 680 681.** **3. THE TAHSILDHAR KODUNGALLUR TALUK, TALUK OFFICE, KODUNGALLUR - 680 683.** **4. THE SECRETARY DEPARTMENT REVENUE, THIRUVANANTHAPURAM - 695 001.** **5. THE DISTRICT COLLECTOR, TRISSUR - 680 001.** ## **BY SR. GOVERNMENT PLEADER SRI. RENIL ANTO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 25823 of 2016 (C)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **P1 TRUE COPY OF THE GIFT DEED NO.3519/15 DATED 21.11.2015 OF MATHILAKAM SRO.** - **P2 TRUE COPY OF THE ASSIGNMENT DEED DATED 20.06.1994 OF MATHILAKAM SRO.** - **P3 TRUE COPY OF THE TAX RECEIPT DATED 19.02.2016 OF KAIPAMANGALAM VILLAGE OFFICE.** - **P4 TRUE COPY OF THE REPORT DATED 18.12.2015 OF 3RD RESPONDENT.** - **P5 TRUE COPY OF THE REPORT AND SKETCH DATED 31.01.2015 OF THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.25823 of 2016-C ---------------------------------Dated this the 30[th] day of September, 2016** ## **JUDGMENT** The petitioner, the absolute owner in possession of about 21 cents of land, covered by Gift Deed No.3519/2015 (Ext.P1), seeks assessment of the pond, which existed in the land,but has been covered over the years and fresh assessment of the entire land as garden land. The petitioner, though seeks a correction in the entry of Basic Tax Register [BTR], effectively the prayer made is for reassessment and change of description in the BTR. 2. The facts to be noticed are that the _W.P(C). No.25823 of 2016-C_ **2** petitioner's mother purchased 21 cents of land as per Ext.P2. The land was comprised in Survey Nos.492/13 and 492/12 of Kaipamangalam Village. However, in Ext.P2 Deed, only Survey No.492/12 was shown. Subsequently, when a Gift Deed was executed in favour of the petitioner, the correction was made and 16.01 cents was shown in Survey No.492/12 and 4.11 cents in Survey No.492/13. Originally there was a pond in the said land having an extent of 2.850 cents. There was no tax paid for the same and hence there could be no Possession Certificate obtained by the petitioner for the entire land in her possession. 3. The petitioner approached the Revenue Authorities and paid tax for the entire land in her possession, as is indicated in Ext.P3. But the BTR describes 2.850 cents as a pond and is _W.P(C). No.25823 of 2016-C_ **3** included as unassessed in the BTR. The petitioner hence approached the Tahsildar, who has filed a report as seen at Ext.P4. 4. Ext.P4 details the discrepancy earlier occurred in drawing of Ext.P2 deed and the correction made under Ext.P1. It is also noticed in Ext.P4 that Survey No.492/12 originally contained a pond of 5 cents, out of which 2.850 cents remain in possession of the petitioner and comprised within the 16.01 cents of her property in that Survey number. The Tahsildar also recommends that the tax be received for the said land also as assessed under the Kerala Land Tax Act, 1961. 5. The learned Government Pleader has filed a statement, in which a communication addressed to the Addl. Chief Secretary is produced as Annexure R3(a). Annexure R3(a) speaks of the _W.P(C). No.25823 of 2016-C_ **4** Malabar Registration Act, 1895, which exempted ponds from payment of land tax and the same having been repealed by Kerala Repealing and Amendment Ordinance, 2005. The said ordinance was never placed in the House, but the communication refers to the report of 2008 of the Kerala Land Reform Commission, which opined that going by the decision of the Hon'ble Supreme Court in **Venkata Reddy and others v. State of Andhra Pradesh [1985 (3) SCC 198],** the repeal of the Malabar Act can be said to be made effective. 6. Further it is also pointed out that the Kerala Land Tax Act, 1961 has been brought into force. The learned Counsel appearing for the petitioner also specifically refers to Section 5 which levies a basic tax on all lands of whatever description and held under whatever _W.P(C). No.25823 of 2016-C_ **5** tenure; _inter alia_ situated in the Malabar area, for a period commencing on and from 1st September, 1957 and ending on 31st March 1958 and thereafter for every financial year commencing on and from the 1st day of April, 1958. 7. In view of the above the exemption of ponds from payment of tax would not be applicable and the petitioner would be entitled to pay tax for the same as garden land especially since the petitioner submits that the same was not converted by the petitioner and had over the years been filled up and is now lying as a pucca land. It is also specifically stated in the statement that the land is also not included in the data bank. 8. In such circumstance, the petitioner shall make an application before the Tahsildar _W.P(C). No.25823 of 2016-C_ **6** who shall assess the tax due on the entire land in possession of the petitioner as garden land and also effect necessary changes in the BTR on the basis of the assessment made, if necessary after conducting a physical inspection of the property. This exercise shall be done within one month from the date of receipt of a certified copy of this judgment. The inspection shall be carried on with notice to the petitioner and final orders shall be passed after affording an opportunity of hearing to the petitioner. Writ petition is allowed. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/jma/01/10/16