Kerala High Court
S.Ajithkumar vs The Asst. Commissioner Of State Tax on 29 January, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941
WP(C).No.32692 OF 2019(J)
PETITIONER:
S.AJITHKUMAR
AGED 48 YEARS
S/O.SUGATHAN,
PUTHENVILA HOUSE,
KATTADY.P.O.,
KOTTARAKKARA TALUK,
KOLLAM DISTRICT.
BY ADVS.
SRI.HARISANKAR V. MENON
SMT.MEERA V.MENON
RESPONDENTS:
1 THE ASST. COMMISSIONER OF STATE TAX,
SPECIAL CIRCLE, SGST DEPARTMENT,
KOTTARAKKARA, KOLLAM DISTRICT-691506.
2 THE TAHSILDAR,
REVENUE RECOVERY,
TALUK OFFICE,
KOTTARAKKARA,
KOLLAM DISTRICT-691506.
3 THE VILLAGE OFFICER,
KOTTARAKKARA VILLAGE,
KOTTARAKKARA,
KOLLAM DISTRICT-691506.
4 THE VILLAGE OFFICER,
MELILA VILLAGE,
VIA.KOTTARAKKARA,
KOLLAM DISTRICT-691506.
OTHER PRESENT:
SMT.M.M.JASMINE, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No. 32692 of 2019
2
ALEXANDER THOMAS, J.
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W.P.(C). No. 32692 of 2019
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Dated this the 29th day of January, 2020
JUDGMENT
The factual aspects projected in the writ petition (civil) are as follows:-
The petitioner was an assessee with respect to various businesses run by him under the KVAT Act on the rolls of the 1 st respondent herein. The petitioner had sold two items of properties in Kottarakkar Village and Melila Village as per Exts.P2 & P2(a) sale deeds on 19.10.2010 and 24.09.2010 respectively. That the request of the petitioner and the purchaser of the property for mutation in the Village records were not being favourably considered alleging that the petitioner was in arrears of sales tax. It is admitted by the petitioner that the petitioner was in arrears with respect to the various businesses as seen from Ext.P1 statement. However, the arrears are with respect to the years 2011-12 onwards whereas the properties are sold in September/October 2010 at which point of time there are no arrears. That the 1st respondent assessing authority has also issued a clearance certificate at Ext.P6 clarifying that for the years upto and including 2010-11 there are no arrears from the petitioner. That it is further stated that in such circumstances, the refusal on the part of the 3 rd & 4th respondents to carry out the mutation as prayed for by the petitioner is illegal and arbitrary.WPC No. 32692 of 2019 3
It is in the above facts and circumstances that the petitioner has filed the aforecaptioned writ petition (civil) with the following prayers;
"(i) To direct the 2nd and 3rd respondents to carry out mutation of properties covered by Exts.P2 & P2 (a) sale deeds executed by the petitioner in favour of the purchaser of the properties, forthwith by the issue of a writ of mandamus or such other writ or order or direction.
(ii) To grant the petitioner such other incidental reliefs including the costs of these proceedings."
3. Heard Sri.Harisankar V. Menon learned counsel appearing for the petitioner and Smt.M.M.Jasmine learned Government Pleader appearing for the respondents.
4. It is contented by Sri. Harisankar V. Menon, learned counsel appearing for the petitioner that Exts.P2 & P2 (a) sale deeds duly executed and registered in accordance with the provisions contained in the Registration Act on 19.10.2010 and 24.09.2010 respectively, whereby the petitioner has lawfully conveyed the landed property covered by these documents to the purchaser concerned. As the property covered by Ext. P2(a) sale deed is coming within the territorial limits of the 3 rd respondent- Village Officer, Kottarakara and that as the immovable property covered by Ext. P2 sale deed comes within the limits of the 4 th respondent Village Officer, Melila Village, the applications were WPC No. 32692 of 2019 4 moved before respondents 3 and 4 seeking mutation of the subject properties and for acceptance of land tax from the purchaser of the property in terms of the provisions contained in the Kerala Land Tax Act and Transfer of Registry Rules. Indeed the purchaser has also made such application as can be seen from Exts.P4 and P4(a) dated 26.11.2019. It could be subsequently learnt that the Revenue officials concerned, more particularly, respondents 2 to 4 are refusing to grant mutation of the subject property and for collection of land tax from the purchaser, merely on the ground that there are alleged sales tax liability owed by the petitioner for the periods, from the assessment year, 2011-12 onwards. Whereas the properties covered by Exts. P2 and P2(a) were lawfully conveyed and transferred as early as 19.10.2010 and 24.09.2010 respectively. The petitioner would contend that respondents 2 to 4 are under the legal obligation to ensure that the mutation of the subject property is granted to the purchaser in accordance with the provisions contained in Kerala Land Tax Act, 1961 and the Transfer of Registry Rules, 1966.
5. Per contra, Smt. M.M. Jasmine, the learned Government Pleader would submit on the basis of instructions that the contention raised by the petitioner that the liabilities WPC No. 32692 of 2019 5 alleged against the petitioner are only for the assessment year 2011-12 is a misconception and that as a matter of fact, the competent tax authorities have informed the Revenue Authorities concerned that the tax arrears are to be paid by the petitioner subsequent for the periods from 2008-09, 2009-10 and 2010- 2011. Therefore, the stand of respondents 2 to 4 in refusing to grant mutation of the subject properties covered by Exts. P2 and P2(a) in favour of the purchaser of those properties cannot be legally faulted. In that regard, the learned counsel for the petitioner would point out that Ext. P6 certificate dated 20.11.2019 is issued by none other than the 1st respondent, Asst. Commissioner of State Tax and therefore it is clear like the day light, that the petitioner is a registered dealer under the Kerala Value Added Tax Act as no tax dues outstanding for the period from 2008-09, 2009-10, and 2010-11, as far as the records of that Officer concerned. Hence, it is pointed out that even if it is assumed, that there were some past liabilities, which are seriously disputed.
6. All such alleged past liabilities are also stand now fully cleared as can be seen from the categorical certification made by none other than 1st respondent, Asst. Commissioner of State Tax WPC No. 32692 of 2019 6 in Ext. P6 certificate dated 20.11.2019 and that therefore the stand of the respondents in refusing to grant mutation of the subject property and to accept the land tax from the purchaser is illegal, ultra vires and would amount be vitiated by the "wednesbury unreasonableness"
7. After having heard both sides, this Court is of the considered view that the matter in issue is no longer res integra and is fully covered in favour of the petitioner and the purchaser in the matter of the claims of mutation. It has been held by this court in a series of decisions as in Thulasibhai Vs State of Kerala, (2010 (4) KLT 215) that the grant of mutation and acceptance of land tax will not in any manner amount to grant of title to the purchaser and it will not have any effect on the revenue recovery proceedings, and therein the property was transferred at a time when the vendor of the property was in default in repayment of the loan availed from the Central Bank of India and the bank had initiated revenue recovery proceedings against the defaulter. On that ground, the revenue officials refused to effect the mutation. It was held by this Court that even if mutation was effected in accordance with transfer of Registry Rules in favour of the purchaser, the claims of such property will remain unaffected and WPC No. 32692 of 2019 7 there is no provision under the Transfer of Registry Rules which prohibits such mutation of subject property.
8. In the case of Sudan Vs State of Kerala, (2013 (4) KLT 563) this Court held that pendency of civil suit can never be a bar in accepting land tax unless it is specifically restrained by an order of Court. Therein the land tax was not received by the officials on account of pendency of suit, which objection was over ruled by this Court. In the case of Vijayarajan Vs Tahsildar, (2013 (2) KLT SN 93), this Could held that pendency of civil suit is not a bar for accepting basic land tax. Therein the suit was filed by the financier bank against the holder of the land, towards the loan availed by him, and got decreed, against which appeal was pending before this Court. The property was attached thereafter by the Deputy Tahsildar (Revenue Recovery). The revenue officials were directed to accept the tax, making it clear that the same would be subject to the result of the appeal etc.
9. In surney Vs Inder Kaur (AIR 1996 SC 2823), the Supreme Court has dealt with the issue regarding the title of the property, consequent to the death of the owner of the land in question and one of the issues raised and considered was that the mutation of the property in the name of plaintiff and that the title WPC No. 32692 of 2019 8 holder had not conveyed any title deed in favour of the said Inder Kaur. It was held in paragraph 7 for the above said decision reported in AIR 1996 SC 2823 that mutation of property in revenue records does not create or extinguish title, nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The said position in this is regard is adumbrated with all clarity in Rule 16 of the Transfer of Registry Rules, 1966, wherein it is categorically provided that the summary enquiry and decision thereon in the matter of grant mutation is only an arrangement for fiscal purposes for the collection of land tax and does not affect the legal rights of any person in respect of the lands covered by the decisions in Transfer of Registry Rules. 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. Further, the plenary law which regulates the matters in relation to the acceptance of land tax is one covered by the Kerala Land Tax Act 1961 and Section 3(3) defines the land holder as follows;
"landholder" means the registered holder for the time being of any land and includes his legal representatives and assigns, and also includes any person who under WPC No. 32692 of 2019 9 any law for the time being in force is liable for the payment of public revenue due in respect of land held by him and in the case of lands which have not been surveyed, the proprietor of the land".
10. Section 4 thereof mandates that the arrangements under the said Act shall be a general revenue settlement - notwithstanding anything contained in any enactment, grant, deed or other transaction.
11. Section 5 provides charge of land tax and it is held therein that the revenue officials are under the bounden statutory obligation to collect land tax from the "land holder as defined in section 3(3) of the Kerala Land Tax, Act 1961. A reading of Section 3(3) in the light of the factual aspects would indicate that the only clause that might apply that one as per Clause B thereof, which provides land holder shall be the registered land holder for the time being of any land and includes his legal representatives and assigns, and also includes any person who under any law for the time being in force is liable for the payment of public revenue due in respect of land held by him.
12. In the instant case, there is no dispute and indeed it is accepted by even the respondent that the petitioner was the registered land holder of the subject property covered by Ext. P2 WPC No. 32692 of 2019 10 and P2 (a). It is also note in dispute that the petitioner has already conveyed rights of the said movable property concerned to the purchaser concerned as per Exts. P2 and P2 (a) sale deeds executed and registered in accordance with the mandatory provisions under the Registration Act. Therefore, the petitioner has already assigned the said property covered by Ext. P2 and P2
(a) to the purchaser concerned. Therefore, the purchaser covered by Ext. P2 and P2(a) is the assignee of the registered land holder. Therefore the purchaser of the property will immediately stand in the shoe of the assignee of the registered land holder as understood Clause B of Section 3(3) of the Kerala Land Tax Act. Further, by virtue of the mandates of the Section 5 of the Kerala Land Tax Act the revenue officials are in bounded duty under the statutory obligation to accept land tax from such land holder as understood in Section 3(3)(d) which in this case is the assignee of the registered land holder, the petitioner, who is none other than the purchaser of the property covered by Ext. P2 and P2(a) sale deeds. There cannot be any dispute regarding such factual aspects. If that be so, respondents 3 & 4 would be plainly violating the law and would be abdicating the statutory obligation in refusing the grant mutation and to accept the land tax from the purchaser of WPC No. 32692 of 2019 11 subject property and therefore, the said stand for the revenue officials including respondents 3 to 4 would be illegal and ultra vires the provisions contained under Kerala Land Tax Act, 1961 and Rules thereunder.
13. Hence it is only to be held that respondents 2 to 4 are under the bounden obligation to immediately take steps to process the application submitted for grant of mutation and to accept the basic land tax in respect to the immovable property in Ext. P2 and P2(a), without any further delay and grant the same immediately. However it is made clear that grant of such mutation and acceptance of the basic land taxes from the purchaser of the property in Ext. P2 and P2(a), will not by itself amount to any conclusive grant of title and it is only for the purpose of enabling the Revenue Officials collecting the land tax. After the property has been duly assigned to the purchaser as per Ext. P2 and P2(a), the only person to from whom the land tax can be collected by respondents 2 to 4 is the purchaser of such property and refusal to grant mutation and accept basic land tax from the purchaser would be illegal and ultra vires and would also amount to an act whereby respondents 2 to 4 would be taking steps detrimental to the interests of the State in the matter of collection of revenue. WPC No. 32692 of 2019 12
14. Accordingly, it is ordered that the competent officials among respondents 2 to 4 will immediately to take the matters on the plea for granted mutation of the land tax and to accept the basic land tax from the purchaser concerned, in respect to the subject property covered by Ext. P2 and P2(a) sale deeds and grant the same without any further delay, at any rate, within a period of one week from the date of production of a certified copy of the judgment and the land tax receipts should also issued to the petitioner. All other issues are left open to be raised and decided in other appropriate proceedings in the manner known to law. This court only dealt with and decided the issue as to from whose favour the mutation is to be made and from whom the basic land tax would be collected, after the immovable properties have been duly conveyed by the sale deed, in favour of the purchaser, taking into account, the above said statutory provisions mentioned herein above.
15. Respondent 2 to 4 should also make necessary changes in the basic tax register as envisaged to Rule 4 of the Kerala Land Tax Rules, 1972 framed under the enabling provisions contained in Section 20 of the Kerala Land Tax Act, 1961 envisages basic tax register. Going by the impact of Clause 3(3)(d) the Revenue WPC No. 32692 of 2019 13 Officials concerned is bound also to make corrections to basic tax register (BTR) to show the name of the assignee of the property in the basic tax register as registered land holder after deleting the name of the petitioner who was the previous registered land holder.
16. Consequently it is also ordered that necessary steps should be immediately taken by the respondents 2 to 4 to ensure that alteration is duly made in the basic tax register (BTR) to show the name of the purchaser as the new registered land holder in the place of the petitioner, the previous registered land holder. Further land tax receipt should also be issued to the purchaser etc. The entire steps in this regard should be duly completed by the respondents 2 to 4 within the above said time limit.
With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.
(Sd/-) ALEXANDER THOMAS JUDGE LU APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF STATEMENT OF THE PETITIONER GIVING THE DETAILS OF SUCH ARREARS.
EXHIBIT P2 COPY OF SALE DEED NO.3211/2010 REGISTERED IN THE OFFICE OF THE ADDL. SUB-REGISTRY KOTTARAKKARA DATED 19.10.2010.
EXHIBIT P2 A COPY OF SALE DEED NO.3957/2010 REGISTERED IN THE OFFICE OF PRINCIPAL SUB REGISTRY KOTTARAKKARA DATED 24.9.2010.
EXHIBIT P3 COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 27.11.2019.
EXHIBIT P3 A COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 27.11.2019.
EXHIBIT P4 COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 26.11.2019.
EXHIBIT P4 A COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 26.11.2019.
EXHIBIT P5 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 19.11.2019.
EXHIBIT P6 COPY OF CERTIFICATE ISSUED BY THE 1ST RESPONDENT DATED 20.11.2019.
// True Copy // PA To Judge