Remanded

Sobha Sasidharan v. Tahsildar, Alathur

Kerala HC21 Nov 2018WP(C)/20280/2018

Case brief

AI extract

What is this about?

The court examined the liability of the legal heir to pay basic land tax under the Kerala Land Tax Act despite conflicting possession records in the village registers. It held that the Revenue authority must conduct a proper enquiry with notice before rejecting the claim and remitted the matter for rehearing.

What did the court decide?

Impugned order rejected by Respondents was set aside and matter remanded for fresh consideration after proper enquiry and notice to the petitioner and the person recorded in village registers.

Sobha Sasidharan Vs Tahsildar, Alathur — Constitutional and Fundamental Rights | Kerala HC (2018)

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(C.R)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940

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WP(C).No. 20280 of 2018

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PETITIONER/S:

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SOBHA SASIDHARAN, AGED 58 YEARS C.405, V.RAJ PALACE, SUNDARVAN SOCIETY, SILVASSA, GUJARAT-396 230

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BY ADV. SRI.V.B.RAMANUNNI

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RESPONDENT/S:

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1 TAHSILDAR, ALATHUR ALATHUR, PALAKKAD DISTRICT-678706

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2 THE VILLAGE OFFICER, THENKURUSSI, PALAKKAD DISTRICT -678671

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OTHER PRESENT:

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SMT.A.C.VIDHYA, GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

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The main prayer in this Writ Petition (Civil)

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is as follows:

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“to issue a Writ of mandamus or any other appropriate writ or order or direction, directing the Respondents to accept basic tax in respect of 0.1445 hectares in Re.Survey 292/3 of Tehnkurussi Village of Palakkad District covered by Ext.P1 within a time frame to be fixed by this Hon'ble Court.”

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2. Heard Sri.V.B.Ramanunni Menon, learned

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counsel for the petitioner and Smt.A.C.Vidhya,

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learned Government Pleader appearing for the

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respondents.

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3. The petitioner claims to be the only legal

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heir of late Raghavankutty Mannadiar, who died on

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15.8.1984 at Vengody in Palakkad District. According to the petitioner, her deceased father, Raghavankutty Mannadiar, was the title holder of the land covered by Ext.P-1 partition deed in ReSy.No.292/3 having an extent of 0.1445 hectares in Thenkurussi Village in Palakkad District. The petitioner's father was the registered land holder of the said land and basic land tax was also accepted from him in terms of Sec.3(3)(d) of the Kerala Land Tax Act, 1961. That Ext.P-2 death

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certificate would show that the petitioner's father had died on 15.8.1984. At the time of his death, he had left a daughter by name Girija, who died later on 29.8.2009 and a son by name Ramadas, who later died on 7.2.2016 and the only remaining legal heir of late Raghavankutty Mannadiar, is the petitioner herein. That, both the abovesaid

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siblings of the petitioner had died without leaving any legal heirs. Therefore, consequent to

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the death of the siblings of the petitioner, she is the sole legal heir of the deceased father, Raghavankutty Mannadiar. That the petitioner was in Gujarat for quite sometime in connection with her employment and hence could not take steps for effecting payment of basic land tax. After the death of brother, Ramadas, the petitioner had tried to pay the basic land tax and she had approached the respondents by submitting letter dated 16.3.2017 for acceptance of basic land tax. However, the respondents have consistently refused to accept basic land tax for the abovesaid property by Ext.P-3 letter dated 11.4.2017 wherein it has been intimated by the respondent-Additional Tahsildar that on enquiry it is found that the property is not in the possession of the petitioner and that earlier it was in the possession of one Sri.Kandan and one Smt.Ponnu, etc. Further, Sri.V.B.Ramanunny Menon, learned

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counsel for the petitioner, would submit on the basis of instructions that the petitioner is in

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possession and enjoyment of the property covered by Ext.P-1 deed and that enquiry would reveal that

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it is the petitioner, who is in possession and no one else, including Ponnu, widow of late Kandan, is in possession, etc. Further it is also submitted by the petitioner's counsel that none of the provisions contained in the Kerala Land Tax Act, 1961 envisage that basic land tax could be accepted only if the person is in indisputable possession of the property and the application of the respondent - Revenue authority is to collect land tax from the land holder as per Sec.3(3) of

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the abovesaid Act in respect of the property concerned.

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4. The 1^st respondent (Tahsildar) has filed statement dated October, 2018 stating that the land which is sought to be mutated is recorded in the name of Sri.Kandan and Smt.Ponnu, wife of Kandan, as per the village records and that as the BTR shows the name of Sri.Kandan, S/o.Pazhanimala, and that, as the land was not in the possession of

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the petitioner as per those records, the request of the petitioner for mutation and acceptance of basic land tax cannot be granted, etc., and that Kandan is no more and that on 8.12.2017, Ponnu (widow of Kandan) and the petitioner could not produce any document to prove their title over the land. However, it is stated by R-1 in the impugned Ext.P-3 proceedings that the petitioner's deceased father obtained the property on the basis of registered partition deed No.663/1963 of S.R.O., Kuzhalmannam. It is stated by the learned Government Pleader on the basis of instructions

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from the 1^st respondent that the name of Sri.Kandan and Smt.Ponnu have been shown in the Basic Tax Register as against the abovesaid property in question. The petitioner would contend that by virtue of the operation of statutory provisions contained in Sec.3(3)(d), the competent authority among the respondents is legally obliged to accept land tax from the legal heirs or the assignees of the registered land holder.

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5. Sri.V.B.Ramanunni Menon, learned counsel for the petitioner has also made submissions and

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contentions on the basis of the provisions contained in the Kerala Land Tax Act, 1961, more particularly, Secs.3(3), 5(2),etc.

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6. Sec.4 of the Kerala Land Tax Act, 1961, envisages that arrangement made under the said Act will be a general Revenue settlement and it clearly mandates therein that notwithstanding contained in any enactment, grant, deed or other transaction, the arrangement made therein as per the said Act for the levy of basic tax shall be

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deemed to be inter alia to be a general settlement of the State. From a reading of the Transfer of Registry Rules, 1966, it appears that the said Rule has not been framed under the provisions of a

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parent enactment and the preamble of the said Rules states that that it is issued in

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supersession of the rules laid down in the Travancore & Cochin Land Revenue Manuals, the Madras B.S.O.No.31 and the unified rules issued by

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the Travancore-Cochin Government in their Notification R.Dis.No.7449/52/Rd. dated 17.09.1953

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relating to the transfer of revenue registry, etc, and that accordingly the Government of Kerala thereby issues the said unified rules for the Transfer of Registry, etc. Since the said Transfer of Registry Rules, 1966 have not been issued under the enabling provisions of a parent enactment, it can only be non-statutory rules issued in exercise of the executive powers of the State Government. Sec.20 of the Kerala Land Tax Act, 1961, empowers the State Government to frame statutory rules. In exercise of the powers under Sec.20 of the Kerala Land Tax Act, 1961, the State Government has statutorily promulgated and framed Kerala Land Tax Rules, 1972 notified and published as per S.R.O.No.506/1972. Rule 4 of the said statutory Rules stipulates that a register called the “ Basic Tax Register ” (BTR) shall be maintained in all the Village and Taluk Offices. Rule 5 of the said Rules envisages that submission

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of application for fixation of the rate of basic tax under Sec.6(2), etc. Rule 6 stipulates that on receipt of an application under Rule 5, the prescribed authority shall cause the application to be verified by the Village officer and the

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further procedure therein has also been prescribed.

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7. Suffice to say that the Transfer of Registry Rules, 1966, which is a non-statutory rule, will have to be read as subservient to the Kerala Land Tax Act, 1961, and the Kerala Land Tax Rules, 1972 framed thereunder.

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8. Sec.3(1) of the abovesaid Act defines ' basic tax' as to be the tax imposed under the provisions of the Act. Sec.5 of the Kerala Land

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Tax Act, 1961, deals with ' charge on land tax' and Sec.5(2) mandates that the ' basic tax charged on any land shall be paid by the “land holder” of that land' ,

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etc. ' Land holder' has been defined Sec.3(3), of

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the abovesaid Act which reads as follows:

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“Sec.3(3): “Land holder” means,-

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(a) in relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964), such cultivating tenant;

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(b) in relation to nay land in the possession of a kanam tenant as defined in the Kanam Tenancy Act, 1955 (XXIV of 1955), such kanam tenant;

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(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;

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(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 nay 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.”

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9. In a case like the instant one, clauses like (a), (b) and (c) which deal with cultivating tenant, possession of kanan tenant and unsurveyed land not held by a cultivating tenant, etc., will not arise. Therefore, the scenario is covered explicitly by clause (d) of Sec.3(3), which is in relation to contingencies other than those covered by clauses (a), (b) and (c) of Sec.3(3), the land holder will be the registered land holder of such land for the time being of such a 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. So in a

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case where a registered land holder has assigned/alienated the land then his

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assignee/assignees will stand in the shoe of the

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land holder going by the impact of Sec.3(3)(d) or in a case registered land holder had died then his legal representative of such a land holder will stand in the shoe of the land holder as understood in Sec.3(3)(d), etc. In a case, after the death of a registered land holder or alienation of the property by him, the Revenue officials concerned has shown the name of a person as the “ registered land holder ” who is other than the legal representative/assignee of the registered land holder as envisaged in Sec.3(3)(d) without notice to the legal representatives/assignees of the deceased registered land holder, as the case may be, then such inclusion of the name of a third party as the registered land holder in the Basic Tax Register will be null and void and non est and will have no consequence or efficacy in the eye of

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law. Otherwise such third party will have to prove that he has lawfully obtained title for that property. In the instant case, the petitioner has a specific case that her father late Raghava Mannadiar was the tile holder and registered land

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holder of the said property on the basis of Ext.P-1 registered deed and that consequent to his

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death as evident from Ext.P-2, the petitioner happens to be his sole surviving legal heir, that then she would fulfil the definition of “ land holder ” as understood in Sec.3(3)(d) of the said Act. That the father has got title as per Ext.P-1 and that land tax was also accepted from him during his lifetime, etc. The factual submissions of the petitioner that the petitioner's father was the registered land holder and title holder of the said property as per Ext.P-1 registered title deed

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and that land tax was accepted from him during his life time and after his death, she is the sole surviving legal heir, etc., are all matters to be ascertained by the respondents after proper enquiry with notice to the petitioner. Going by the statutory impact of Sec.3(3)(d) of the Act as well as Sec.5(2) of the abovesaid Act, the LR of

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the deceased registered land holder or the assigneee of the registered land holder as the

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case may be, will fulfil the definition of land holder as understood in Sec.3(3)(d) and the competent Revenue official authorities like the respondents are statutorily obliged to accept land tax from such persons aforestated or otherwise it will amount to abdication of the statutory duties and obligations of statutory Revenue officials like respondents. Consequentially, in such a case, the competent Revenue officials will also be statutorily obliged to endorse the name of such LR/assignee, as the case may be, as the registered land holder in the

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BTR mandated as per Rule 4 by making additional entries thereon. In the instant case, Sri.V.B.Ramanunni Menon, learned counsel for the petitioner submits that no notice has been issued to the legal heirs of the deceased registered land holder/title holder before the name of one Kandan was allegedly shown in the BTR and thandaper records by the respondents. If no notice has been issued to the legal representatives of the deceased registered land holder before the name of

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Kandan was shown in the records after the death of the deceased father of the petitioner, then such action on the part of the respondents in showing the name of such a third party and that too without notice to the LRs including the petitioner will be non est, null and void. Otherwise the third party should prove that he has lawfully obtained title for that property.

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10. The petitioner has now filed an additional affidavit dated 13.11.2018 in this case and paras 2

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& 3 of that affidavit reads as follows:

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“2. As per section 3(3)(d) of the Land Tax Act, 1961, the basic tax of land is to be collected from the land holder which includes legal heirs and assignees of registered land holder. AS the Petitioner's father Raghavankutty Mannadiar who was the registered holder as per Ext.P1, died on 15-8-1984, his legal heirs are his son Ramadas and the petitioner. The brother was unmarried and has no heir. The petitioner's mother also died after death of father and her brother died three years back. Hence the petitioner is the only registered holder entitled to pay tax. As per Land Tax Act, 1961, Section 5(2), the Land tax shall be a paid by the land holder. As per Sec.5(3), the land tax shall be a public recovery and Revenue Recovery Act, is applicable.

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3. The decisions reported in 2013 (4) KLT, 563 and 2012 (4) KLT SN 118 reiterates that the land tax has to be collected from land holder.”

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11. None of the abovesaid relevant and crucial

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aspects, more particularly, the statutory impact of Sec.3(3)(d) r/w Sec.5(2) and that of Sec.4 of the Kerala Land Tax Act and Rule 4 of the Kerala

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Land Tax Rules, as well as the factual aspects to be ascertained by the respondents as to whether the petitioner's father was the title holder and registered land holder based on Ext.P-1 and whether land tax was accepted from him and whether the petitioner is the sole surviving legal heir of the deceased father, etc., have not been even remotely adverted to and considered by the respondents in Ext.P-3 rejection order.

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12. Hence the matter requires a remit and accordingly Ext.P-3 will stand set aside and the request made by the petitioner for acceptance of

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basic land tax will stand remitted to the respondents for consideration afresh. The competent authority among respondents 1 & 2 will issue notices of hearing to the petitioner as well as the abovesaid Ponnu, widow of Kandan, and will also conduct enquiries on the abovesaid aspects as to whether petitioner's father was the titleholder

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and registered land holder of the property as per Ext.P-1 and as to whether land tax has been

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accepted from him and as to whether the petitioner is the sole surviving legal heir of the deceased father and as to whether the name of Kandan was shown in the Basic Tax Register/thandaper account register after due notice to the LRs of the registered land holder, etc. Appropriate enquiry on the abovesaid aspects will be conducted and a copy of the said enquiry report should be furnished both to the petitioner and to Smt.Ponnu, widow of late Kandan. Thereupon, after granting reasonable opportunity of being heard to the petitioner and Ponnu, the competent authority

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among respondents 1 & 2 will take a considered decision on the request made by the petitioner for acceptance of basic land tax in the light of the abovesaid legal provisions contained in Sec.3(3) (d) and Sec.5(2) of the Kerala Land Tax Act and also the statutory impact and force of Sec.3(3)(d) as discussed above on the facts of this case. It

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is made clear that if it is found that

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petitioner's father was the person from whom land

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tax was accepted up to his death and he has been thus the registered land holder of the property in question and the name of Kandan was shown without notice to the petitioner and other legal heirs and that the petitioner is the sole surviving legal heir of the deceased father, and Kandan or Ponnu has not lawfully obtained title for that property, then the request for acceptance of land tax, etc., should be granted. In such contingency, thandaper account should be duly allotted to the petitioner and necessary entries shall be made in the BTR as per Rule 4 of the Kerala Land Tax Rules, 1972, to show the name of the petitioner as the registered land holder. Orders in this regard should be duly passed by the authorised authority among respondents 1 & 2, without much delay, preferably within a period of 2 months from the date of receipt of a certified copy of this judgment. If orders are passed by the respondents for acceptance of Basic Land Tax, then it is also

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open to the petitioner to submit a formal application for grant of mutation of the property in

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accordance with the Transfer of Registry Rules, 1966 and the said application should also be duly granted by the competent authority among respondents without any further delay.

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With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS,

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JUDGE.

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Bkn/-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY PF NO.636/63 OF	THE PARTITION DEED SRO, KUZHALMANNAM
EXHIBIT P2	TRUE COPY OF ISSUED BY THE 1984	THE DEATH CERTIFICATE PANACHAYAT DATED 20-8-
EXHIBIT P3	TRUE COPY OF 2017 ISSUED B ALATHUR	THE LETTER DATED 11-04- Y THE ADDITIONAL TAHSILDAR

Sobha Sasidharan v. Tahsildar, Alathur

Case brief

What is this about?

What did the court decide?

Sobha Sasidharan v. Tahsildar, Alathur

Case brief

What is this about?

What did the court decide?

What the court decided

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