Remanded

Sindhu Satheesh v. the State of Kerala

Kerala HC14 Nov 2018WP(C)/22052/2018

Case brief

AI extract

What is this about?

Purchasers challenged refusal of mutation and acceptance of basic land tax. The court declared the predecessor's patta cancellation illegal, set aside the rejection orders and remitted the applications for fresh consideration, barring reliance on the rejected grounds and directing mutation if otherwise in order.

What did the court decide?

Rejection orders set aside; mutation applications remitted for reconsideration after hearing, preferably within six weeks of producing the judgment, without relying on the rejected grounds.

Sindhu Satheesh Vs the State of Kerala — Property and Title | Kerala HC (2018)

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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 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940

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WP(C).No. 22052 of 2018

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PETITIONERS:

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1 SINDHU SATHEESH

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W/O. SATHEESH,"PANIKKASSERIL",P.O.TALIKULAM,TRHISSUR.

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2 NARAYANAN NAMBOODIRI S/O. MADHAVAN NAMBOODIRI,PALLISSERY MANA, POONKUNNAM, THRISSUR.

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BY ADV. SRI.ANIL SIVARAMAN

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY,REVENUE DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM- 695 001

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2 THE DISTRICT COLLECTOR CIVIL STATION, PAINAVU,IDUKKI- 685 603

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3 SRI.M.K. SHAJI TAHSILDAR (LR),UDUMBANCHOLA TALUK,NEDUMKANDOM, IDUKKI- 685 553

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4 THE VILLAGE OFFICER CHINNAKANAL VILLAGE OFFICE,CHINNAKANAL.P.O., SURYANELLI, IDUKKI- 685 618

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5 THE SUB REGISTRAR RAJAKUMARI, IDUKKI- 685 602

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6 ADDL.R6 THE TAHSILDAR (LAND RECORDS) UDUMBANCHOLA TALUK, NEDUMKANDOM, IDUKKI DISTRICT. (ADDL.R6 IS SUO MOTU IMPLEADED AS PER ORDER DATED 14/11/2018)

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SRI.M.R.DHANIL, GOVT.PLEADER FOR R1,R2,R4 AND R6

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.22052 of 2018

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ALEXANDER THOMAS,J.

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=========================== W.P.(C)No.22052 of 2018

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=========================== Dated this the 14^th day of November,2018

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J U D G M E N T

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The petitioners are essentially aggrieved by the refusal on the

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part of the competent authority among the respondents 6 and 4 in granting mutation in their favour in respect of the properties covered by Exts.P1 to P3 registered sale deeds and their consequential as well as the refusal to accept basic land tax from the petitioners in respect of the above said properties.

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The prayers in the above Writ Petition (Civil) are as

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follows:

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“(a) declare that the petitioners are entitled to have mutation effected in the land records as applied for under Exts.P9 and P10 applications, in view of Exts.P2 and P3 deeds of sale and Exts.P6 and P7 encumbrance certificates, as provided for under the Transfer of Registry rules,1966;

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(b) issue a writ in the nature of mandamus, or any other such appropriate writ, order or direction, commanding the 3^rd respondent to immediately effect mutation in the land records, as sought for under Exts.P9 and P10 applications, and as is mandated under the Transfer of Registry rules, 1966 in view of Exts.P1 to P3 registered deeds;

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(c) issue any other such writ, order or direction as may appear to be necessary to be issued by this Hon'ble Court in the facts and circumstances of the instant case; and

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(d) award the costs of the petitioners in these

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proceedings.”

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Heard Sri.Anil Sivaraman, learned counsel appearing for the petitioners and Sri.M.R. Dhanil learned Government Pleader appearing for all the respondents.

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According to the petitioners, they are registered owners of six cents each landed properties situated in Chinnakanal Village, Udumbanchola Taluk, Idukki Revenue District, on the basis of Exts.P1 to P3 registered sale deeds. That the petitioners had purchased the above said properties as per Exts.P1 to P3 registered sale deeds from the previous title holder, one Smt.Annamma, who was earlier assigned this land under Ext.P4 Patta No.LA 81/1993 dated 13.07.1994. Ext.P5 is the Thandaper Account allotted to the above said Smt.Annamma in respect of the property covered by Ext.P4 Patta. According to the petitioners they had been repeatedly making attempts to get their property mutated pursuant to the above said registered sale deeds and that their attempts were turned out to be vague, as the various Revenue Officials including respondents 4,6 etc., were taking indifferent attitude citing various grounds at various points of time. Later, the petitioners could learn that the stand of the official respondents like respondents 6,4

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etc, is that all the Pattas in the locality concerned including the Patta granted to Smt.Annamma, has been canceled and further, that the files in relation to Ext.P4 Patta etc, are not traceable. Further, even the application submitted by the petitioners have not been taken into file by the Revenue Officials concerned, and the petitioner was forced to run from pillar to post for the last more than a decade and a half. Ultimately, they had engaged an Advocate in order to represent them before the competent Revenue officials concerned and for ensuring that their applications are taken on record for consideration and for further action. Later, the Munnar Tribunal had rendered Ext.P8 judgment dated 19.02.2015 in Munnar Tribunal Original Petitions, MTOP 122/11 and MTOP 19/12 which were filed by certain other assignees of the above said Smt.Annamma and other persons and some of the properties involved in those OPs before the Munnar Tribunal were part of the larger extent of land of Smt.Annamma covered by Ext.P4 Patta, which were assigned by her to the assignees concerned. By Ext.P8 final order rendered on 19.02.2015, in the above said MTOPs, the Munnar Tribunal has clearly and categorically declared that the cancellation of the Patta granted to Smt.Annamma (ext.P4 herein,)

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is illegal and ultra vires and the cancellation was ordered on the premise that she had alienated the properties in violation of the restrictive period of alienation imposed in the said Patta etc. The Tribunal held that the Rules of assignment concerned were later amended retrospectively w.e.f. 19.03.1993, taking away the restriction of alienation and that therefore the alienation of the properties covered by Ext.P4 patta effected by smt.Annamma, subsequent to 19.03.1993 (the date of amendment of the Rules), will get the protection of the said amended provision and therefore, the alienation was held to be lawful and consequentially it was held that the cancellation of the Patta was illegal and ultra vires. After the rendering of Ext.P8 order of the Munnar Tribunal, the petitioners have submitted Exts.P9 and P10 applications dated 21.03.2018 seeking grant of mutations in respect of the properties covered by Exts.P1 and P2 registered sale deeds and for acceptance of the basic land tax for the above said property and the said applications have been preferred before the 6^th respondentTahsildar. Since petitioners could learn that the competent respondent authorities concerned are not inclined to, even consider the request for mutation as per Exts.P9 and P10

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applications, they have been constrained to file the instant writ petition.

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Exts.P11 and P12 are the reports dated 27.03.2018, issued by the 4^th respondent Village Officer stating that the lands concerned stands transferred to the names of the petitioners pursuant to Exts.P1 to P3 registered sale deeds and that petitioners are in possession of the property. Exts.P13 and P14 are the reports dated in 06.04.2018, of the Taluk survey concerned, who appears to have taken the stand that the applications of the petitioners for mutation could be processed only after action is taken to regularise the Thandaper account number of the predecessor, Smt.Annamma, presumably to enable collection of basic land tax initially in her name for the period during which it was not accepted from her, before land tax could be accepted from the petitioners, who are her assignees. By Ext.P16 report dated 06.04.2018, the 4^th respondent Village Officer has reported that the petitioners are in actual physical possession of the properties covered by Exts.P1 to P3 registered sale deeds.

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By Exts.P17 and P18 proceedings dated 20.06.2018, the

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6^th respondent-Tahsildar has rejected the plea of the petitioners for taking action on their request for mutation on the grounds cited therein. One of the grounds cited therein is that, it is not known whether the Munnar Tribunal has rendered final verdict in the above MTOPs. Secondly, it is stated that the petitioners are not in physical possession of the properties. Thirdly, he would state that the petitioners or their representatives have not appeared before him. It is also futher stated therein that the earlier Pattadhar, Smt.Annamma, was in possession of the said properties only till 2003-04 and further that the 6^th respondent is unable to proceed further as the abovesaid Smt.Annamma, who is now no more, was not having possession of the property after 20.03.2004.

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It is in the light of these factual aspects that the petitioner has filed the instant Writ Petition (Civil) with the aforementioned prayers.

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The 3^rd respondent, who is individual, then held the post of the 6^th respondent Tahsildar has filed a statement dated 03.08.2018 in this matter. The main grounds cited in the said pleadings of the respondents for justifying their action of refusal to

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mutate the properties are as follows. Firstly, that the petitioners are not in physical possession of the properties covered by Exts.P1 to P3 registered sale deeds. Secondly, it is stated that the original assignee Smt.Annammma, has been remitting land tax up to 200304, even thereafter the land tax has been accepted in her name, that petitioners have not submitted application for grant of mutation immediately after the purchase of property etc.

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Thirdly, it is stated that ExtP4 patta granted to Smt.Annamma has already been cancelled and that therefore, there is no question of the petitioner's claiming any derivation of title based on Ext.P4 patta.

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As regards the objection taken by the respondents that petitioners are not in possession of the properties, it can be seen from a mere perusal of Exts.P11 and P12 reports submitted by none other than the 4^th respondent- Village Officer, wherein it has been clearly stated that petitioners are in possession of the lands in question. Further, in Ext.P16 report dated 06.06.2018, the 4^th respondent has again reiterated categorically and unequivocally that petitioners are in actual physical possession of the properties

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covered by Exts.P1 to P3 registered sale deeds. Therefore, this Court would only wonder as to how responsible officers like the 3^rd respondent, who is holding the post of Tahsildar, could state that petitioners were not in possession of the property concerned. The abovesaid stand taken by the respondents more particularly respondents 6 and 3 is nothing short of patent and manifest arbitrariness and capriciousness.

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As regards the second ground the petitioners have not submitted application for the grant of mutation within a reasonable time after purchasing the property etc, the following aspects are relevant. The petitioners have categorically stated that they have been running from pillar to post for the last decade and a half and that even the applications have not been taken on record and that the officials concerned were taking an hostile stand all through out. Later they had taken the stand that the Patta granted to the prior title holder itself was canceled etc. The matter relating to the grant of mutation and transfer of Registry are regulated by the provisions contained in the Transfer of Registry Rules, 1966. No time line is stipulated for submitting an application on the purchase of the property to submit application for grant of

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mutation before the competent authorities concerned. On the other hand, it is trite that matters relating to mutation are only for fiscal purposes and does not by itself amount to any grant of title and that aspect of the matter is clearly adumbrated in Rule 16 of the Transfer of Registry Rules. Therefore, merely because that there has been a delay on the part of the party concerned in submitting the application for grant of mutation, there is no valid ground whatsoever for the competent officials, like respondents 6 and 3, to say that they will not consider the application for mutation if it has been submitted belatedly. This is all the more so, as it is the statutory obligation of competent revenue officials like respondents 3,4 and 6 to collect land tax from the “ land holder” concerned, going by the madate of Sec.5(2) read with Sec.3(3)(d) of the Kerala Land Tax Act, 1961. It is the admitted case of the respondents that pursuant to Ext.P4 Patta, the property was mutated in the name of Smt.Annamma and that land tax has been accepted from her up to 2003-04 and a Thandaper Account number was also granted in her name as per Ext.P5. Thereafter, it appears that the respondent authority concerned has canceled the patta granted to Smt.Annamma on the ground that she had

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alienated and transferred the property, in violation of the conditions imposed in the Patta. It appears that the land tax has been accepted in her name even thereafter. Since the respondent authorities concerned have not cared to even consider the application for mutation made by the petitioners, then they cannot be blamed having paid the basic land tax in respect of the properties in the name of the previous title holder. That aspect of the matter cannot be taken against the petitioner in as much as it only shows the bona fide and that they are prepared to pay due revenue to the State. The unjustifiable delay on the part of the competent revenue officials will lead to the direct and inevitable result of loss of revenue, which is nothing but abdication of their statutory obligations to collect land tax as per the above Act. Merely, because the land tax was accepted in the name of Smt.Annamma even after the properties were purchased by the petitioners, by itself is not relevant ground to take the adamant stand that the application for grant of mutation made by the petitioners will not be considered. Therefore, the contentions of the respondents 6 and 3 that unless the Thandaper Account is restored to the name of Smt.Annamma and unless the cancellation

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of the Patta is restored, the request of the petitioners cannot be considered, etc, is illegal and ultra vires. That aspect of the matter shall be considered later hereinafter. The above said objections raised by the respondents that petitioners should be penalised for submitting their applications belatedly, is not a ground to reject the plea of the petitioners.

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The next aspect is the crucial matter relating to the cancellation of the Patta granted to smt.Annamma. From a reading of the pleadings and materials on record, it appears that Ext.P1 Patta bearing No. LA 81/93 was granted to Smt.Annamma on 13.03.1994. The said Patta has been granted under the provisions contained in the “Kerala Land Assignment(Regularisation of Occupation of Forest lands prior to 01.01.1977)special Rule 1993. Rule 15 of the above said Rule as it stood immediately prior to the grant of Ext.P4 Patta provided as follows.

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“ Lands assigned to be heritable but not alienable except in certain cases-

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(1) The lands assigned under these rules shall be heritable but shall not, subject to sub-rule(2) be aleinable.

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(2) The assignee may mortgage the land to the Government, Co-operative Institutions, Tea Board, Coffee Board or the Rubber Board or any other Institutional Credit Agencies as Security for obtaining loans for agricultural and land improvement purposes or

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constructions or repair of houses under any housing scheme sponsored by Government or for improvement of the business of the assignee.

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Explanation-For the purpose of this clause 'Institutional Credit Agencies' means Public Sector Banks, Regional Rural Banks, State Co-operative Bank, Central Co-operative Bank, Primary Co-operative Society, Government owned or controlled Companies and Corporations and such other Institutions as the Government may specify in this behalf.”

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So the provisions contained in Rule 15 as it originally

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existed, provided that though the lands assigned are heritable, the same shall not be alienable, but subject to the provisions contained in sub-Rule(2) thereof, permitted the assignee to mortgage land to Government and certain enumerated agencies etc. Later, the provisions contained in the above said Rule 15 was amended as per G.O.(P)No. 456/2010/RD dated 16.11.2010, published under S.R.O. No.1058/2010 in Kerala Gazette Extraordinary No.2582 dated 18.11.2010, but with retrospective effect from 19.03.1993. The above said Rule 15 after retrospective amendment w.e.f. 19.03.1993 now provides as follows:

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“The lands assigned under these rules shall be heritable and alienable, subject to the condition that the alienated land shall not be used for any purpose other than those specified in Rule 3.”

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So with retrospective effect from 19.03.1993 it has been

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clearly mandated that the lands assigned under the above said rule

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are heritable and alienable, but subject to the condition that the lands shall not be used for any purposes other than those specified in Rule 3. In the instant case, after the grant of Ext.P4 Patta dated 13.07.1994, Smt.Annamma has sold her properties to the petitioners herein as per Exts.P1 to P3 registered sale deeds dated 05.09.1996 and 30.05.1998 respectively. It is true that at that time the execution and registration of those sale deeds Rule 15 as it then existed clearly provided that the lands were not alienable. But later an amendment was carried out as per notification dated 18.11.2010, but with retrospective effect from 19.03.1993, whereby Rule 15 was amended so as to provide that the lands are not only heritable but also alienable, etc. Therefore, by virtue of the retrospective amendment, the prohibition against alienation stood statutorily effaced in the eye of law and therefore the alienation made by Smt.Annamma (original pattadhar of Ext.P4 patta)to the petitioners as per ext.P1 to P3 is lawfull for all purposes. This aspect of the matter,has been so clearly held by the Munnar Tribunal in Ext.P8 final order dated 19.02.2015 rendered on MT(OP)Nos.122/2011 and 19/2012. It will be pertinent to refer to internal pages 23 to 26 in Ext.P8, which read as follows:

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“The petitioners claim title and possession over 38.950 cents of lands in Resurvey Nos. 37/30 and 37/31 of Block No.6 in Chinnakanal Village on the basis of assignment order in LA 80/93/C and LA 81/93/C . To prove that 24.700 cents was originally assigned to Sri. S. Nagayya, as per LA. 80/93/C and 14.250 cents in Sy.No.37/31 was originally assigned to Smt. Annamma W/o. Nagayya as per L.A. 81/93/C the petitioners produced original pattayam issued in their name which were marked as Ext. A8 and A9 without any objection on the side of the respondents. Derivation of title in respect of above referred 38.950 cents of land in favour of the petitioners is not in dispute. Though genuineness of the issuance of Ext. A8 and A9 pattayam also challenged in the instant case no materials produced on the side of the respondents to prove that the land referred in Ext. A8 and A9 issued in the name of assignees respectively are not genuine. The file connected with issuance of Ext. A8 and A9 not at all produced on the side of the respondents irrespective of directions. The revenue authorities concerned was unable to produce the original files on the reason that the file connected with the assignment is unavailable in their records. Non availability of files related to issuance of pattayam cannot be a ground for doubting the genuineness of the pattayam produced on the side of petitioners.

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To prove that petitioners have got valid title by way of sale deeds executed in their name by Sri. Nagayya and Smt. Annamma produced certified copy of title deeds Ext. A1 to A5 and Ext. A20. Those documents are not challenged on the side of the respondents. Therefore, petitioners succeeded in establishing that they have got valid title over 38.950 cents of lands in Sy. No. 37/30 and 37/31 referred in Ext. A8 and A9 pattayam in Chinnakanal Village. Being found that petitioners have title over the above extents of lands in Sy.Nos. 37/30 and 37/31 the next question is whether petitioners violates a rules as referred in the impugned order of Learned District collector?

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The learned District Collector, Idukki ordered concellation of Patta assigned as per LA81/93[C) and LA 80/93(C) on finding violation of LA Spl Rule 1993. The assignee's transfer of assigned lands in favour of the petitioners is found in violation of rule 15 above referred by the Learned District Collector. No other violations pointed out in the impugned order. No evidence also let in on the side of the respondents to prove any other violation in respect of above referred lands. We have highlighted amendment of rule 15 as above. Rule 15 being amended deleting 'not' from rule 15 vide GO. (P) No. 456/2010/RD dated 16.11.2010 there is no restriction for alienation. The alienation was in the year 1996. The amended provision comes into force on the

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19th day of March, 1993. Therefore, alienation alone is not a ground for cancelling patta invoking rule 16 as ordered by the learned District Collector. Therefore, the order of Learned District Collector in cancelling patta issued as per LA81/93 and LA80/93 is found not legal or proper. In view of the above said discussion we come to a finding that petitioners have got valid title over an extent of 38.950 cents falls in Sy.Nos. 37/30 and 37/31 of Chinnakanal village.”

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The applicants in Ext. P8 petitions have filed Miscellaneous First Appeals before this Court to challenge certain aspects of the matter to the limited extent they were aggrieved by that verdict, on some other issues, which are now pending before this Court in MFA(MT)No.39 of 2015. It is common ground that the State has not filed any appeal as against Ext.P8 final order of the Munnar Tribunal especially, on the finding made therein that the cancellation of the Patta granted to Smt.Annamma was illegal and ultra vires. This Court had granted time to the learned Government Pleader to ascertain whether any appeal has been filed by the State as against Ext.P8, more particularly in respect of the findings made in respect of the cancellation of Patta of Smt.Annamma. Sri.M.R.Dhanil, learned Government Pleader appearing for the respondents would submit that the State has not preferred any appeal. Therefore, it is beyond any legal controversy that the said findings rendered by the Munnar Tribunal in Ext.P8

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final order has become final and conclusive. That apart, on an independent consideration of the matter, and de-hors the findings in Ext.P-8, this Court is of the considered view that the cancellation of Ext.P-4 Patta granted to Smt.Annamma is illegal and ultra vires for the simple reason that the alienation made by her, has been legally validated by the retrospective amendment of Rule 15 w.e.f. 19.03.1993. Consequently, it is only to be held that the main ground cited by the respondents that the petitioners' application for mutation cannot be touched in view of the cancellation of Ext.P4 Patta granted to the previous title holder Smt.Annamma is absolutely untenable and unsustainable. Some faint suggestions have been made in the statement filed by the 3^rd respondent about the lack of availability of the files in relation to the Ext.P4 patta. That aspect of the matter has gained the attention of the Munnar Tribunal in Ext.P8 final order. It will be relevant to note the observations and findings of the Munnar Tribunal refereed to in internal pages 36 and 37 of Ext.P-8 order, which read as follows:

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“Before parting with we are inclined to observe certain factors took note during the course of disposal of cases in which authorities under government were asked to produce files relating to issuance of Patta. This Tribunal was

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constituted for the adjudication of disputes similar to the disputes in the instant case. Out of three files related to issuance of patta involved in this case two files relating to issuance of patta LA 80/93/C and 81/93/C were not produced on the reason that those files were untraceable. It is time to fix responsibility of missing files on the erring officers. We are forced to take judicial notice of casual approach in certain village officers and Tahsildar who failed to satisfy us regarding the reasons submitted by them for non production of the documents called for. This Tribunal was constituted for preserving the government lands by preventing encroachments. The officials under the government are under a duty to act in good-faith and to assist the Tribunal in screening documents under challenge.”

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Though the respondents have not taken any objections

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either in their pleadings filed before this Court or in the impugned Exts.P17 and P18 proceedings regarding the non-availablity of the rules pertaining to Ext.P4, this Court would hold that the respondents shall not take any such ground of objection to deny the request of the petitioners. If that is permitted, the inability of the respondents to trace out their own files, would permit them to penalise the subsequent assignees like the petitioner, which is illegal and arbitrary. Further, it has to be borne in mind that a Division Bench of this Court as per Ext.P19 order dated 03.07.2018 has passed orders in the above said Miscellaneous First Appeal MFA(MP)No.39/2015, whereby it has been ordered that there is no legal impediment in accepting basic land tax in respect of the properties of the petitioners therein. The order dated 03.07.2018

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rendered by the Division Bench of this Court on I.A.No.800/2018 in MFA(MP)No.39/2015 reads as follows:

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“Heard the learned counsel for the petitioners and the learned special Government Pleader appearing for the Government.

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It is made clear that there is no legal impediment in accepting the basic tax with respect to the property of the petitioners, having an extant of 55 cents in Survey No.527, 24.70 cents in Re-survey No.37/30 and 14.250 cents in Re.survey No.37/31 of Chinnakanal village, pending final disposal of the appeal.”

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Hence, even the Division Bench has made its mind

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clear that the pendency of the M.F.A. cannot be cited as a ground for postponing the consideration of the request for the grant of mutation and acceptance of the basic land tax. That apart, it is to be borne in mind that the crucial issue that is relevant in this case which is arising from Ext.P8 final order of the Munnar Tribunal is in respect of the finding that the cancellation of the Patta granted to Smt.Annamma is illegal and ultra vires. The said finding has become final and conclusive. This Court has also now independently declared that cancellation of Ext.P4 Patta is illegal and non-est and this finding is de hors the findings in Ext.P8 order. Lastly the 3^rd / 6^th respondent has stated in the impugned Ext.P17 /P18 rejection orders dated 20.06.1998, that it is not known whether final verdict has been rendered by the Munnar

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Tribunal in the above MTOPs. This Court, to say the least, is baffled that a responsible officer like R-3/R6 in the rank of Tahsildar, who is the Head of the Revenue Administration in the Taluk is unaware even as late as on 20.06.1998 that Munnar Tribunal had rendered the final verdict as per Ext.P8 as early as on 19.02.2015. So the stand in Ext.P17 and P18 is nothing but arbitrary and unreasonable. Therefore, the respondents are bound to act upon the request of the petitioners for grant of mutation.

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It is also ordered that the competent authority among respondents 6 and 4 cannot reject the plea of the petitioners for mutation of the property on the ground that the thandapper account No. granted to Smt.Annamma should be restored in her name and that the petitioners' request could be considered only after regularising the Thandapper account allotted to Smt.Annamma. Without any such technical hurdles, the respondents should independently consider the plea of the petitioners for mutation and if they are otherwise eligible and entitled for the same, the same should be granted, in which case a separate thandapper account number is to be allotted to the petitioners.

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Lastly it is stated by R-3/R-6 that the authorities can take up the plea of the petitioners for mutation in their name only after the the suspended thandapper account allotted to the previous title holder Smt.Annamma is restored for regularising such aspects, etc. It appears that the property was earlier mutated in the name of Smt.Annamma and Ext.P-5 thandapper account number was also duly allotted to her and basic tax was also being collected from her for quite some time and later Ext.P-4 patta was cancelled and the said cancellation is illegal and ultra vires for the above mentioned reasons. As the very cancellation of Ext.P-4 patta is illegal and ultra vires, the petitioners, who are the assignees of the said title holder, cannot be penalised for the long delay taken by the respondents in regularising the thandapper account number of Smt.Annamma. The said previous land holder has no right or interest in the said properties covered by Exts.P-1 to P-3. Therefore, the plea that her thandapper account will have to be restored before the action is taken for granting mutation to the petitioners, etc. is hypertechnical and irrelevant. Therefore, all the grounds of rejection cited by respondents 3 and 6 are illegal and untenable and hence the respondents are bound to act upon the

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request of the petitioners for grant of mutation and acceptance of basic land tax.

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There is yet another important aspect flowing out from the provisions of the Kerala Land Tax Act and the rules framed thereunder. Sec.5 of the Kerala Land Tax Act, 1961, deals with charge of land tax and Sec. 5(2) thereof mandates that basic land tax charged on any land shall be paid by the land holder of that land. “ Land holder ” has been defined in Sec. 3(3) of the Land Tax Act, 1961, which reads as follows:

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“Sec. 3: Definitions. In this Act, unless the context otherwise requires,-

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(1)

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(2) ....

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(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 any 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 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”.

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In cases as in the instant one, the property has been

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mutated in the name of the previous land holder and thandapper

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account number has also been allotted to the land holder and basic land tax has also been accepted for quite some time. The petitioners have purchased the said property from the previous title holder as per Exts.P1 to P-3 registered sale deeds. Therefore, the factual contingencies conceived in clauses (a), (b) and (c) of Sec. 3(3) will not apply in the instant case. Since the property has been mutated in favour of the previous title holder and after allotting thandapper account and after accepting land tax, etc. the said previous title holder will be the “ registered holder ” of the said land as understood in Sec. 3(3)(d). In cases where such registered land holder alienates and assigns such properties to persons like the petitioners, as per registered deeds, such purchasers will be the assignees of the registered land holder as understood in the said provision and therefore, after assignment of the land by the previous title holder in favour of the assignees, the previous title holder will lose his/her rights or interest in the said property and the assignee will stand in the shoe of the “ land holder ” as understood in Sec. 3(3)(d). In a case where such previous title holder dies and does not alienate or assigns the property, then the legal representatives of such deceased registered land holder will

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stand in the shoe of “ land holder ” as understood in Sec. 3(3)(d). Going by the mandate of Sec. 5(2) and Sec. 3(3)(d), the competent Revenue officials are cast with the statutory obligation and duty to accept land tax from such land holder as understood in Sec. 3(3), which in the instant case, would attract clause (d) thereof. If the competent Revenue officials do not accept land tax from such land holder as understood in Sec. 3(3)(d), then it will amount to nothing but abdication of the statutory obligation and duties of such competent Revenue officials, the direct and inevitable consequence of which is loss of revenue to the State. The Kerala Land Tax Rules, 1972 has been framed under the enabling rule making process contained in Sec.20 of the Kerala Land Tax Act, 1961. Rule 4 of the Kerala Land Tax Rules , 1972, envisages that a register called the Basic Tax Register shall be maintained in all the village and taluk offices. Sec. 4 of the Kerala Land Tax Act mandates that the arrangement made under the said Act shall be the general revenue settlement and it is clearly mandated therein that notwithstanding anything contained in any enactment, grant, deed or other transaction, the arrangement made as per the said Act for the levy of the basic tax shall be deemed inter alia

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to be a general revenue settlement of the State. It appears from a reading of the Transfer of Registry Rules, 1966, that the same has not been framed under the enabling provisions of a parent enactment and its source of power is eminently within the domain of executive powers of the State conferred as per the provisions of the Constitution of India and hence the said rules are non statutory in nature. Going by the provisions of the Kerala Land Tax Act, more particularly Sec. 4 thereof, the provisions of the Transfer of Registry Rules, 1966, will be subservient to the provisions contained in the Kerala Land Tax Act, 1961 and the Kerala Land Tax Rules, 1972. Going by the mandate of Sec. 3(3) and Sec. 5(2) of the Kerala Land Tax Act and the Rule 5 of the Kerala Land Tax Rules,1972, the competent Revenue officials are statutorily obliged to accept basic land tax from “ land holder ” as understood in Sec. 3(3) and necessary endorsement will also have to be made in the basic tax register (BTR) as per Rule 4 of the Kerala Land Tax Rules, 1972, so as to make additional entry therein to show the name of such person as the registered land holder. The legal

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implications of the abovesaid provisions have to be clearly borne in mind by the competent Revenue officials, like respondents 6 and 4, while considering the request of the petitioners for mutation and for acceptance of the basic land tax in respect of the properties covered by Exts.P-1 to P-3 registered sale deeds and any breach of the said provisions in the Kerala Land Tax Act and the Rules would be nothing but illegal and ultra vires and would also amount to abdication of the statutory obligations and duties of the competent Revenue officials concerned.

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In the light of the abovesaid aspects, it is only to be held that the impugned decision rendered by the 6^th respondent/3^rd respondent as per Exts.P17 and P18 in rejecting the plea of the petitioners for grant of mutation etc., is highly illegal, ultra vires and arbitrary and accordingly the same will stand set aside. The application of the petitioners for grant of mutation as per Exts.P9 and P10 will stand remitted to the competent authority among respondents 6 and 4 for proper consideration. The competent authority among respondents 6 and 4 will consider the said request

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made by the petitioners in accordance with the provisions contained in the Keral Land Tax Act and the Transfer of Registry Rules and will grant the said request if it is otherwise in order. It is made clear that the competent authority among the respondents cannot reject the request of the petitioners for grant of mutation and acceptance of the basic land tax etc, on the grounds cited in the impugned Exts.P17 and P18 orders or by citing the various other grounds cited in the statement filed by the 3^rd respondent, which has already been dealt with and overruled by this judgment hereinabove. This Court has already held that the action of the 3^rd respondent/6^th respondent in rejecting the plea of the petitioners was not only illegal and ultra vires, but also highly capricious, whimsical and arbitrary. This Court had made a specific query to both sides as to whether the 3^rd respondent is still holding the post of the 6^th respondent Tahsildar and now it is apprised to this court that the 3^rd respondent has now been transferred to a different station and a new officer is now occupying the post of 6^th respondent Tahsildar. This Court had asked this query to consider as to whether orders should be issued that the request for mutation should be considered by an officer other than the 3^rd

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respondent, in order to ensure that an unbiased and fair approach is meted out to the petitioners. Now that the 3^rd respondent is no longer in holding the post of 6^th respondent Tahsildar, this Court would only hope and expect that the present incumbent in the post of 6^th respondent the Tahsildar would act in a fair, reasonable and just manner so as not to give room for any complaints, in the light of the previous experience of the petitioners. This Court also would venture to observe that the 6^th respondent should not unnecessarily make the petitioners run from pillar to post again and should decide the matter objectively and the light of the above said observations and findings made by this Court. The decision in this regard should be rendered by the competent authority among respondents 6 and 4 without much delay, preferably within a period of 6 weeks from the date of production of a certified copy of this judgment, after granting an opportunity of being heard to the petitioners through their authorised representative/counsel, if any.

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With these observations and directions the Writ Petition (Civil) will stand finally disposed of. Sd/-

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ALEXANDER THOMAS, JUDGE

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PR/14.11.2018

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APPENDIX

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PETITIONERS EXHIBITS:

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TRUE COPY OF REGISTERED DEED DATED 5.9.1996 TRUE COPY OF REGISTERED DEED DATED 5.9.1996 TRUE COPY OF REGISTERED DEED DATED 30.5.98 TRUE COPY OF PATTA NO.LA 81/93

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EXHIBIT P1 TRUE COPY OF REGISTERED DEED DATED 5.9.1996 EXHIBIT P2 TRUE COPY OF REGISTERED DEED DATED 5.9.1996 EXHIBIT P3 TRUE COPY OF REGISTERED DEED DATED 30.5.98 EXHIBIT P4 TRUE COPY OF PATTA NO.LA 81/93 EXHIBIT P5 TRUE COPY OF TP ACCOUNT EXHIBIT P6 TRUE COPY OF ENCUMBRANCE CERTIFICATE EXHIBIT P7 TRUE COPY OF ENCUMBRANCE CERTIFICATE EXHIBIT P8 TRUE COPY OF ORDER IN MTOP 122/11 EXHIBIT P9 TRUE COPY OF APPLICATION DATED 21.3.2018 EXHIBIT P10 TRUE COPY OF APPLICATION DATED 21.3.2018 EXHIBIT P11

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TRUE COPY OF ENCUMBRANCE CERTIFICATE TRUE COPY OF ENCUMBRANCE CERTIFICATE TRUE COPY OF ORDER IN MTOP 122/11 TRUE COPY OF APPLICATION DATED 21.3.2018 TRUE COPY OF APPLICATION DATED 21.3.2018 TRUE COPY OF REPORT OF 4TH RESPONDENT DATED 27.3.18

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EXHIBIT P12 TRUE COPY OF REPORT OF 4TH RESPONDENT DATED 27.3.18 EXHIBIT P13 TRUE COPY OF REPORT OF TALUK SURVEYOR DATED 6.4.18 EXHIBIT P14 TRUE COPY OF REPORT OF TALUK SURVEYOR DATED 6.4.18 EXHIBIT P15 TRUE COPY OF NOTICE DATED 8.5.18 EXHIBIT P16 TRUE COPY OF REPORT OF 4TH RESPONDENT DATED 6.6.18 EXHIBIT P17 TRUE COPY OF LETTER OF 3RD RESPONDENT DATED 20.6.18 EXHIBIT P18 TRUE COPY OF LETTER OF 3RD RESPONDENT DATED 20.6.18 EXHIBIT P19 TRUE COPY OF ORDER DATED 03.07.2018

Sindhu Satheesh v. the State of Kerala

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Sindhu Satheesh v. the State of Kerala

Case brief

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