Allowed

Khadeeja Syedumuhammed v. the Tahsildar, Taluk Office

Kerala HC18 Feb 2019WP(C)/4633/2019

Case brief

AI extract

What is this about?

Single bench dismissed the writ petition allowing mutation of land to the petitioner as an assignee under the Kerala Land Tax Act, directing the 3rd respondent to conduct survey and demarcation after notice, while quashing orders refusing mutation due to boundary disputes.

What did the court decide?

Quashed impugned orders; remitted matter to 3rd respondent for survey and mutation after due notice; directed grant of mutation within 6 weeks contingent on absence of final civil verdict.

Khadeeja Syedumuhammed Vs the Tahsildar, Taluk Office — Land Acquisition | Kerala HC (2019)

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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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MONDAY, THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940

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WP(C).No. 4633 of 2019

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PETITIONER/S:

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KHADEEJA SYEDUMUHAMMED AGED 53 YEARS, D/O.VATTAKUDY MEETHIAN, ANACHIRA PUTHENPURAYIL, VARAPPETTI VILLAGE NOW RESIDING AT MEZHUKKATTIL HOUSE, SAFA NAGAR, EDATHALA NORTH P.O., ALUVA - 683 561.

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BY ADVS. SRI.MATHEWS K.UTHUPPACHAN SRI.BIJU .C. ABRAHAM

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RESPONDENT/S:

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1 THE TAHSILDAR, TALUK OFFICE, REVENUE TOWER, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN 686 666.

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2 THE TALUK SURVEYOR KOTHAMANGALAM TALUK, REVENUE TOWER, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686 666.

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3 THE VILLAGE OFFICER VARAPETTI VILLAGE, VAZHAKULAM ROAD, VARAPETTY, ERNAKULAM, PIN - 686 691.

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OTHER PRESENT:

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SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 4633 of 2019

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ALEXANDER THOMAS, J .

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W.P(C).No.4633 Of 2019

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Dated this the 18^th day of February, 2019.

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J U D G M E N T

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

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“i) To issue a writ of mandamus or other appropriate writ or order directing the Respondents to mutate the property of the Petitioner covered by Ext-P1 in favour of the Petitioner in the revenue records forthwith;

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ii) To issue a writ of mandamus or other appropriate writ or order directing the 2^nd respondent to measure and demarcate the boundaries of the property of the Petitioner on the basis of Exbt-P1 and village records; and

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iii) Grant such other reliefs as this Hon'ble Court may deem just and proper in the interest of justice, including costs.”

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2. Heard Sri.Mathews K.Uthuppachan, learned counsel for

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the petitioner and Sri.Saigi Jacob Pallatty, learned Senior Government Pleader appearing for the respondents.

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The petitioner claims to be in absolute ownership having possession and enjoyment of 9.71 ares of land comprised in Sy.No.163/9-2 of Varapetty Village, Ernakulam Revenue District on the basis of Ext.P-1 registered settlement deed No.1197/1997 dated 20.6.1997 of S.R.O., Pothanikkadu. The petitioner would further state that her various requests for mutation, transfer of registry and acceptance of basic land tax in respect of the property have not been acted upon by the respondents for flimsy and untenable grounds.

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WP(C).No. 4633 of 2019

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Ext.P-2 is the basic land tax receipt dated 13.11.2018 in the name of the petitioner's predecessor in respect of the property covered by Ext.P-1 registered deed. Ext.P-3 is the Encumbrance Certificate dated 22.2.2014 issued by the S.R.O., Pothanikkad, under the provisions of the Registration Act, in respect of the subject property covered by Ext.P-1 deed and Ext.P-4 is stated to be one of the latest request made by the petitioner for mutation before the 3^rd respondent-Village Officer on 5.12.2013. The 2^nd respondent-Taluk Surveyor has issued Ext.P-5 report stating that the property is not in the possession of the petitioner and therefore, he is not in a position to effect mutation. The petitioner would state that Ext.P-5 report has been submitted by the 2^nd respondent-Taluk Surveyor, without conducting any inspection of the property and on the basis of wrong facts. Ext.P-6 is the proceedings dated 23.8.2016 issued by the 1^st respondent-Tahsildar, stating that since property is not having definite boundaries, it is not possible to ascertain the possession in respect of the subject property and that therefore mutation cannot be considered now and that the petitioner will have to approach the civil court, etc. In Ext.P-7 letter dated 19.5.2017 the 1^st respondent has again reiterated the very same objections and has rejected the request of the petitioner for mutation of the subject property covered by

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WP(C).No. 4633 of 2019

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Ext.P-1 registered deed. Sec.5(2) of the Kerala Land Tax Act, 1961 mandates that competent revenue officials like R-1 Tahsildar and R-3 Village Officer are obliged in law to collect land tax in respect of the land concerned from the land holders concerned as understood in Sec.3(3) of the said Act. Sec.3(3) of the Kerala Land Tax 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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Going by the facts of this case, though clauses (a), (b) & (c) may not attract this case, there cannot be any doubt that clause (d) of Sec.3(3) will be attracted inasmuch as the petitioner has secured the property on the basis of Ext.P-1 registered settlement deed. It is not beyond dispute that the petitioner's predecessor's predecessor was the registered land holder as evident from Ext.P-2 land tax receipt. Since the property has been duly transferred in respect of the petitioner as per Ext.P-1 registered deed, the petitioner could be treated as a person who has secured the right

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WP(C).No. 4633 of 2019

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of an assignee of the previous registered land holder as understood in Sec.3(3)(d) and hence he would certainly fulfil the definition of "land holder" under Sec.3(3)(d). Thus going by the combined mandate of Secs.5(2) and 3(3), the competent revenue officials like respondents 1 and 3 are obliged to collect land tax from the land holder as understood in Sec.3(3) in respect of the subject property covered by Ext.P-1 deed. Sec.4(1) of the Kerala Land Tax Act mandates that the settlement of revenue mandated as per that Act shall prevail over other arrangement made for levy of basic tax under any other law. Rule 4 of the Kerala Land Tax Rules, 1971 framed under the Kerala Land Tax Act mandates that Basic Tax Register (BTR) shall be maintained in all the Taluk and Village offices. Therefore, once registered land holder assigns the property, it is the duty of the competent officials like the respondents 1 & 3 to ascertain as to who is the assignee from whom land tax should be accepted and make necessary changes in the Basic Tax Register as per Rule 4 of the Rules so as to show the name of the assignee in the place of previous registered land holder where the latter assigns the property to an assignee. Hence it is only to be held that the stand taken by respondents in Exts.P-5 &

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WP(C).No. 4633 of 2019

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P-7 that they are not in a position to mutate the property and accept basic land tax in the name of the petitioner on the ground of lack of clarity in he boundaries on account of boundary disputes cannot be the legal basis to refuse acceptance of basic land tax from the assignee of the registered land holder.

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Accordingly, Exts.P-5 & P-7 will stand quashed. If the respondents feel that the survey and measurement is required certainly they can do so with prior notice to the affected persons, But if such objectors do not accept the correctness of survey, measurement and demarcation process done by the respondents under the Kerala Survey and Boundaries Act, certainly such objectors can dispute such survey and measurement either by filing statutory appeal or by filing appropriate civil proceedings where they will be at liberty to raise any such legally justiciable grievances in that regard.

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Rule 16 of the Transfer of Registry provides as follows:

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“ Rule 16: The summary enquiry and decision thereon is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases. The question of legal rights is always subject to adjudication by Civil Courts and pattas will be revised from time to time in accordance with judicial decisions.”

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WP(C).No. 4633 of 2019

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Accordingly, the matter in Ext.P-4 will stand remitted to the 3^rd respondent-Village Officer. The respondents will ensure that survey, measurement and demarcation of the property assigned to the petitioner as per Ext.P-1 is got done by the Taluk Surveyor with due prior notice to the petitioner, objectors and neighbouring property owners. In case any third party including the objectors have any objections to the survey, measurement and demarcation, they will be at liberty to challenge the same in accordance with law either through the statutory appeal process or through civil court concerned. Needless to say, in case the said objectors have any legally justiciable grievance as regards the title and possession, then the grant of mutation will not stand in the way of objectors to seek adjudication of such disputes through appropriate civil proceedings. However, such possible future disputes or pending civil disputes cannot be a ground for respondents 1 & 3 to refuse the mutation, transfer of registry and acceptance of basic land tax so long as the petitioner is an assignee of the registered land holder on the basis of Ext.P-1 registered deed and is thus the “ land holder ” as understood in Sec.3(3). After the survey and measurement process is over, the 3^rd respondent will afford a reasonable opportunity of being heard to the petitioner as well as any objectors, and will consider the request for

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WP(C).No. 4633 of 2019

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mutation, transfer of registry and acceptance of basic land tax on the basis of Ext.P-1 deed and will grant the same if it is otherwise in order. It is made clear that respondents cannot refuse the said request by citing the ground as in the impugned Ext.P-6 and P-8 which are already quashed by this Court as untenable. However, any such mutation will not in any manner prejudice any rival claims as aforesaid and if on such rival claims have been successfully established by any judicial verdicts from the civil court concerned, then the respondents will be obliged to revise the mutation by taking into account such judicial verdicts of civil court in the light of the specific provisions contained in Rule 16 of the Transfer of Registry Rules. The entire process in this regard should be duly completed by the respondents without much delay, preferably within a period of 6 weeks from the date of production of a certified copy of this judgment.

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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, Judge.

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bkn/-

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WP(C).No. 4633 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED O.1197/1997 DATED 20/6/1997 OF SRO POTHANIKKADU.

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EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 13/11/2018 EVIDENCING PAYMENT OF BASIC TAX FOR THE YEAR 2018-19.

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EXHIBIT P3 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE SUB REGISTRAR, POTHANIKAD DATED 22/2/2014.

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EXHIBIT P4 TRUE COPY OF THE PETITION DATED 5/12/2013 SUBMITTED BEFORE THE 3RD RESPONDENT.

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EXHIBIT P5 TRUE COPY OF THE REPORT OF THE 2ND RESPONDENT.

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EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 23/8/2016 ISSUED BY THE 1ST RESPONDENT.

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EXHIBIT P7 TRUE COPY OF THE REPLY DATED 19/5/2017 ISSUED BY THE 1ST RESPONDENT.

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EXHIBIT P8 TRUE COPY OF THE PETITION DATED 25/9/2017 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

Khadeeja Syedumuhammed v. the Tahsildar, Taluk Office

Case brief

What is this about?

What did the court decide?

Khadeeja Syedumuhammed v. the Tahsildar, Taluk Office

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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