Allowed

Gracy Jose v. the Tahsildar

Kerala HC8 Oct 2020WP(C)/15889/2020

Case brief

AI extract

What is this about?

The High Court allowed the writ petition seeking mutation and permit to pay basic tax. It held that secured creditors under the SARFAESI Act enjoy priority over land tax charges. Consequently, the land holder in whose name the property is registered is entitled to mutation and tax remittal.

What did the court decide?

Petition allowed; respondents directed to effect mutation and permit petitioner to pay basic tax.

Gracy Jose Vs the Tahsildar — GST and Indirect Tax | Kerala HC (2020)

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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 RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942

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WP(C).No.15889 OF 2020(I)

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PETITIONER/S:

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GRACY JOSE, AGED 77 YEARS, W/O. T. P. JOSE, THEKKUMPURAM HOUSE, BAZAR ROAD, PUDUKKAD, THRISSUR DISTRICT, PIN - 680 301.

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BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA

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RESPONDENT/S:

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1 THE TAHSILDAR, MUKUNDAPURAM TALUK, MUKUNDAPURAM, THRISSUR DISTRICT - 680 733.

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2 THE VILLAGE OFFICER, AMBALLUR VILLAGE, AMBALLUR, THRISSUR - 680301.

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3 THE CHIEF MANAGER, STATE BANK OF INDIA, STRESSED ASSETS MANAGEMENT BRANCH, NO.32/1747, K1, 7TH FLOOR, VANGARATH TOWERS, PALARIVATTOM, BYPASS JUNCTION, KOCHI - 682 026.

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SRI M JITHESH MENON, STANDING COUNSEL SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.15889 OF 2020

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JUDGMENT

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By virtue of Ext.P1 sale certificate issued by the 3rd respondent in exercise of his powers under Section 13 of the Securitisation And Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. (‘SARFAESI’ Act for short) read with Rule 8 and 9 of the Security Interest (Enforcement) Rules, 2002, the petitioner came in possession of property having an extent of 4 cents comprised in survey No. 1659/52 of Amballur Village.

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After getting the sale certificate registered as aforesaid, she approached the 2nd respondent and filed an application with requisite fees to effect mutation and to permit her to pay the basic tax. However, her request was not acceded to by respondents 1 and 2. The petitioner contends that before purchase of the property, she had applied for and obtained the certificate of encumbrance and as is evident from Ext.P2 certificate, no encumbrance was noted for the period from 1.1.1988 to 22.11.2019. It is further contended that after executing and registering the sale, the bank has issued Ext.P3 letter to the 2nd respondent to permit her to remit land tax. However, no action was taken. It is in the aforesaid circumstances, that the petitioner has approached this Court seeking a direction to the respondents 1 and 2 to receive land tax with respect to the 4 cents of land comprised in sy.

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WP(C).No.15889 OF 2020

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No.1659/25 of Amballur Village either from the petitioner or the 3rd respondent and for incidental reliefs.

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I have heard Sri C.A.Chacko, the learned counsel appearing for the petitioner and the learned Government Pleader.

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I have considered the submissions advanced and have perused the records. Section 26E of the SARFAESI Act grants priority to secured creditors after the registration of the security interest and the debts due to any secured creditor shall be paid in priority over all other debts and all revenues, taxes, cesses and other rates payable to the Central Government or State Government or local authority. The rights and liberties conferred on the creditor/bank by virtue of mortgage created and the right to proceed under the relevant provisions of the SARFAESI Act cannot be defeated because of the subsequent attachments ordered by the Civil Court (see HDFC v. Sub Registry Officer [2011 KHC 851] and Madhan v. Sub Registrar [2014 (1) KLT 406]). In TDB v Deputy Examiner, Local Fund Audit and Others , [2020 (3) KHC 129]. A Division Bench of this Court had occasion to observe that the sale carried out either under the SARFAESI Act or under the RDB Act takes precedence even over the statutory charges due to the Government created under KVAT Act or under other State Enactments after the Amendment Act of 2016. A secured creditor in whose favour a security interest has been created thus has priority in sale and payment over all other statutory charge holders.

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WP(C).No.15889 OF 2020

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Even otherwise, Section 5 of the Kerala Land Tax Act, 1961 enjoins the 'landholder', in whose name a land is registered, to pay the tax due under the provisions of the Act and a corresponding duty is imposed on the Revenue to receive the Tax when the same is offered. In that view of the matter, she is entitled to get the property mutated in her favor and also to remit the basic tax.

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Resultantly, this writ petition will stand allowed. The respondents 1 and 2 are directed to effect mutation in respect of the property covered under Ext.P1 sale certificate and permit the petitioner to pay basic tax on her remitting the requisite fees for the same.

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SD/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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DSV

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WP(C).No.15889 OF 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF SALE CERTIFICATE ISSUED BY 3RD RESPONDENT DATED 19.08.2019. EXHIBIT P2 TRUE COPY OF ENCUMBRANCE CERTIFICATE ISSUED FROM SUB REGISTRAR OFFICE, NELLAYI. EXHIBIT P3 TRUE COPY OF LETTER DATED 14.02.2020 OF 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF COMMUNICATION DATED 13.03.2020 THE 2ND RESPONDENT.

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RESPONDENT'S/S EXHIBITS: NIL

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//TRUE COPY// P.A.TO JUDGE

Gracy Jose v. the Tahsildar

Case brief

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Gracy Jose v. the Tahsildar

Case brief

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