Allowed

Rahulan v. Tahasildar (Lr)

Kerala HC7 Jul 2021WP(C)/7109/2021

Case brief

AI extract

What is this about?

Petitioner challenged revenue orders cancelling a land mutation without notice. The court held that the cancellation violated natural justice and cited CPC provisions on attachment timing, quashing the orders and directing restoration of the Thandaper.

What did the court decide?

Exhibits P4 and P5 proceedings quashed; Thandaper number 9995 restored to petitioner; directed to permit land tax payment.

Rahulan Vs Tahasildar (Lr) — Land Acquisition | Kerala HC (2021)

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WP(C) NO. 7109 OF 2021

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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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WEDNESDAY, THE 7^TH DAY OF JULY 2021 / 16TH ASHADHA, 1943

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WP(C) NO. 7109 OF 2021

PETITIONER:

RAHULAN

AGED 51 YEARS

S/O.RAGHAVAN PILLAI, BHAVANI MANDIRAM, EROOR VILLAGE, PUNALUR TALUK, KOLLAM-691312.

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BY ADV ARUN BABU

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RESPONDENTS:

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1 TAHASILDAR (LR) TALUK OFFICE, MINI CIVIL STATION, PUNALUR, KOLLAM-691305.

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2 VILLAGE OFFICER, OFFICE OF VILLAGE OFFICER ANCHAL, EROOR, ANCHAL, KOLLAM-691306.

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3 SOUMYA, AGED 31 YEARS D/O. PUSHKALA, PANKAJAVILASOM HOUSE, CHINGELI MURI, PULIPPARA P.O., KADAIKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM-691536.

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BY ADV SRI.R.KRISHNAKUMAR (CHERTHALA)

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SMT K AMMINIKUTTY K, SR GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 7109 OF 2021

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JUDGMENT

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The petitioner purchased an item of property having an extent of 81 Ares and 10 sq meters in Resurvey No.428/1 of Anchal village from a certain Gopinathan Nair as per Exhibit P1 sale deed executed and registered on 02/11/2020. The petitioner approached the revenue authorities and after following the procedure under the Transfer of Registry Rules, 1966, effected mutation and he was allotted a Thandaper number as 9995. Being the holder of land, he proceeded to remit land tax. Exhibit P2 is the land tax receipt issued by the second respondent on 18.12.2020. However, without notice to the petitioner, by Exhibit P5 proceedings, the Thandaper number allotted was cancelled and the earlier Thandapper was restored. This was for the reason that the property was attached by the Family court on a petition filed by the daughter-in-law of his vendor. Ext.P4 is a letter issued by the 2nd respondent informing the petitioner that the Thandaper number allotted to him was being cancelled as per the directions issued by the Tahsildar. It is in the afore circumstances that the petitioner is before this Court seeking to quash Exhibits P4 and P5 and for a declaration that the petitioner is entitled to retain the property covered in Exhibit P1 in the Transfer of Registry notwithstanding the attachment.

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Sri.Arun Babu, the learned counsel appearing for the petitioner

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WP(C) NO. 7109 OF 2021

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pointed out that the petitioner purchased the property on 2.11.2020. He would refer to Exhibit P6 Encumbrance certificate and it was urged that the attachment of the Family court was registered only on 4.11.2020, much after the registration of Exhibit P1 deed. According to the learned counsel, the relevant statutory Rules do not confer any powers to the respondent Nos.1 and 2 to initiate any suo moto proceeding to cancel the Thandapper as has been done in the instant case. The fact that the petitioner was not put on notice and his version was not heard was also highlighted by the learned counsel. Finally, it is submitted that a subsequent attachment would not affect the right of the petitioner, who as the land holder, is bound to remit land tax as per the provisions of the Land Tax Act.

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The learned Government pleader on instructions submitted that no notice was served on the petitioner before proceeding to pass Exhibit P5 order.

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The learned counsel appearing for the party respondent submitted that the petitioner is a real estate broker and he had colluded with the father-in-law of the 3rd respondent and had got the property assigned in his name to prevent the 3rd respondent from realizing the amount lawfully due to her.

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I have considered the submissions advanced. Ext.P1 is the

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WP(C) NO. 7109 OF 2021

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assignment deed dated 2.11.2020 executed by Sri. Gopinathan Nair in favour of the petitioner. Ext.P2 would reveal that the petitioner has remitted tax as per Thandaper number 9995, which has been allotted by the revenue authorities. It is emphatically clear from Ext.P6 Encumbrance certificate that the attachment of the property covered under Ext.P1 was effected on 4.11.2020 pursuant to orders passed in O.P.No.310/2020 on the files of the Family Court, Kottarakkara. From Ext.P4 letter issued by the Village Officer, it is apparent that the 3rd respondent had lodged a complaint before the Tahsildar and it was pursuant to orders passed by the said authority that mutation was cancelled. In Ext.P5 letter issued by the 1st respondent to the 3rd respondent, the Tahsildar has informed that the Thandaper issued has been cancelled and the earlier Thandaper number was restored.

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6. Rule 15 of the Transfer of Registry reads thus:

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With the help of the details furnished in the statement in Form 'A' prepared by the Village Officers and such further information as the Tahsildar may receive from parties and village officials at the time of enquiry regarding the fact of possession and enjoyment, payment of tax and other particulars, the Tahsildar shall determine the person in whose name the transfer of registry shall be made. No case shall be rejected solely for the default of appearance of the parties as it is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) upto date and bring into it the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land.

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WP(C) NO. 7109 OF 2021

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As per Rule 15, when an application is presented to a Revenue Officer seeking transfer of Registry, the Tahsildar may call for details from the Village Officer and after securing information from the parties, regarding the fact of possession and enjoyment, payment of tax and other particulars, the Tahsildar has to determine the person in whose name the transfer of Registry shall be made. It further provides that the most important concern of the Land Revenue Department is to keep the Thandaper accounts (Chittal) up-to-date and bring into it the names of the real land holders, who shall be held liable for payment of Government revenue due on land. It would be worthwhile to remember that under Section 5 of the Land Tax Act, 1961, there shall be charged and levied a tax called (Basic tax) on all lands and it has to be paid by the landholder of the land. Land holder has been defined under Section 3(c)(d) in relation to land not falling within (a) to (c) of Section 3, the registered holder for the time being of such land.

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Rule 18 of the Transfer of Registry Rules reads as follows:

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Rule 18.

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(i) An appeal against an order passed by the Village Officer or the Revenue Inspector shall lie to the Tahsildar and an appeal against the order passed by the Tahsildar or the Deputy Tahsildar shall lie to the Revenue Divisional Officer. Appeals shall be presented within 30 days from the date of receipt of the order. In computing the period of 30 days, the time taken for obtaining a copy of the order shall be excluded.

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WP(C) NO. 7109 OF 2021

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(ii) The appellate authority may admit an appeal after the expiry of the prescribed period of 30 days if he is satisfied that the appellant has good and sufficient cause of not preferring the appeal within that period. In such cases, the authority who admits the appeal shall record the fact of having condoned the delay.

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(iii) No appeal shall be admitted unless accompanied by the original of a certified copy of the order appealed against. (The certified copies shall be prepared on stamp paper and signed by competent authority). No officer shall decide a case in appeal without giving notice to the parties who are affected by the decision and without giving them an opportunity to be heard.

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(iv) it shall be open to the District Collector if he is satisfied that sufficient ground exists to revise, cancel or alter on his own motion or otherwise any decision or order passed by the Revenue Inspector, Deputy Tahsildar, Tahsildar or the Revenue Divisional Officer within a period of 15[five years] from the date of such decision.

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(v) No revision shall however be entertained by the District Collector unless the parties have exercised the right of appeal prescribed under these rules. No order in revision interfering with the original order shall be passed without giving to the party or parties affected thereby a reasonable opportunity of being heard. The revision petition presented by the parties shall be accompanied by the original or a certified copy of the order sought to be revised. The certified copies shall be prepared on stamp paper of sufficient value. The District Collector shall take up a revision case and decide it if it comes to his knowledge that there is a likelihood of the Government being involved in a Civil Suit.

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Rule 18 provides for a grievance redressal mechanism which is

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available to any person who is aggrieved by an order passed by the revenue authorities. A remedy of appeal is provided before the superior authority.

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Rule 18(iii) mandates that no officer shall decide a case on appeal without giving notice to the parties who are affected by the decision and without giving them an opportunity of being heard. However, powers have been conferred to the District Collector, on him being satisfied that sufficient ground exists to revise, cancel or alter on his own motion or otherwise any decision or order passed by his subordinate officers. Rule 18(v) says that the District Collector shall not pass any order without giving the party concerned a reasonable opportunity of being heard.

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There cannot be any doubt that the observance of the principles of natural justice is fundamental to the discharge of any quasi judicial function. In the case on hand, admittedly, no proceeding as contemplated under Rule 18 was initiated. Before passing Ext.P5 order, the petitioner was not put on notice. The procedure adopted by the respondents is in blatant violation of the relevant Rules as well. I have no doubt in my mind that the impugned order has been passed in clear violation of the principles of natural justice and against the provisions of the relevant rules.

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There is yet another matter. Under Order XXXVIII Rule 10 of the Code of Civil Procedure, attachment before judgment shall not affect the rights, existing prior to the attachment, or persons not parties to the suit. Section 64 of the CPC states that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein

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WP(C) NO. 7109 OF 2021

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and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void against as against all claims enforceable under the attachment. In the instant case, from Ext.P6 it is evident that the attachment was effected much after the registration of the sale deed in favour of the petitioner. This aspect of the matter was not taken note of by the revenue authorities. Furthermore, this Court, in Joseph Kurian v. Village Officer [2010(3) KLT 251] had held in the context of the Kerala Land Tax Act, 1961 that collection of land tax is for fiscal purpose and therefore, the attachment cannot prevent the authority from receiving tax from the land holder.

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Having considered the entire facts, I am of the considered opinion that Ext.P4 and P5 proceedings issued by the respondents 1 and 2 cannot be sustained and the same will stand quashed. As a consequence, there will be a direction to the respondents to restore Thandaper number 9995 to the name of the petitioner and permit him to pay land tax.

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This writ petition will stand allowed.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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WP(C) NO. 7109 OF 2021

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APPENDIX OF WP(C) 7109/2021

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE SALE DEED 1505/2020 DATED 2.11.2020 OF ANCHAL SRO. EXHIBIT P2 THE TRUE COPY OF THE TAX PAID RECEIPT DATED 18.12.2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 THE TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 28.10.2020 ISSUED FROM THE ANCHAL SRO. EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 3.3.2021 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 THE TRUE COPY OF THE LETTER DATED 23.1.2021 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P6 THE TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 5.3.2021 ISSUED FROM THE ANCHAL SRO. EXHIBIT P7 THE TRUE COPY OF THE JUDGMENT IN WP(C) 31021/2017 DATED 4.1.2018 IS PRODUCED.

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RESPONDENTS EXHIBITS:

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EXHIBIT R3A A TRUE COPY OF THE FIR IN CRIME NO.345/2021 OF ANCHAL POLICE STATION DATED 17.3.2021. EXHIBIT R3B A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE RDO, PUNALUR DATED 24.12.2020. EXHIBIT R3C A TRUE COPY OF THE NOTICE ISSUED BY THE FAMILY COURT, KOTTARAKKARA DATED 3.11.2020.

Rahulan v. Tahasildar (Lr)

Case brief

What is this about?

What did the court decide?

Rahulan v. Tahasildar (Lr)

Case brief

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