A.K.Yasmine vs The Village Officer on 21 January, 2025

[Cites 15, Cited by 0]

Kerala High Court

A.K.Yasmine vs The Village Officer on 21 January, 2025

The petitioner who owns and possesses 3.25 cents of land in survey No.17/2 and 1.200 cents of land in survey No 17/2B of Kumily Village in Peermade Taluk of Idukki District, on the strength of Ext.P1 sale deed dated 11.09.2013 executed by the previous owner of the property, approached this Court with the above writ petition filed under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 1st respondent Village Officer, Kumily Village to accept basic tax from her for the said property.

2. According to the petitioner, she purchased the aforesaid properties by virtue of Ext.P1 sale deed bearing No.2811 of 2013 of SRO, Peermade on 11.09.2013. But, even after the lapse of ten years, in spite of repeated requests, respondents 1 and 2 did not effect mutation of the properties. The last such request was made by virtue of Ext.P2 application dated 05.08.2024. When the petitioner 4 W.P.(C)No.29439 of 2024 2025:KER:6203 enquired about the status of Ext.P2 application, the 1st respondent informed her that he would be able to effect mutation of the property only after perusing details of encumbrance over the property. The petitioner had already produced Ext.P3 encumbrance certificate obtained from the Sub Registrar Office, Peermade, for the period from 05.07.2009 to 14.07.2024 before the 1st respondent wherein there is no subsisting liabilities or encumbrance over the property. Hence the petitioner approached this Court with the above writ petition.

3. Heard the learned counsel for the petitioner and the learned Senior Government Pleader for the respondents.

4. The learned counsel for the petitioner submitted that the refusal to receive basic tax from the petitioner by the 1 st respondent Village Officer and the non-mutation of the property by him is without any basis and it is against the settled position of law laid down by this Court in Vijayarajan M.D v. Tahsildar and others [2013 (2) KLT SN 119]. 5 W.P.(C)No.29439 of 2024

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5. The learned Senior Government Pleader, on instructions from the 1st respondent Village Officer, Kumily, submitted that there is an attachment order dated 25.05.2015 on the property covered by Ext.P1 from the District Court, Thodupuzha, in I.A No.168 of 2015 in (Arb) No.39 of 2015. Hence mutation of the property can be effected only after lifting of the said attachment.

6. The petitioner purchased 3.25 cents in survey No.17/2 and 1.200 cents in survey No.17/2B of Kumily Village by virtue of Ext.P1 sale deed dated 11.09.2013 executed by one Muhammed Kunju in her favour. From the Ext.P2 request made by the petitioner before the 1st respondent on 05.08.2024 and from the submissions made by the Senior Government Pleader, it is clear that the mutation of the property to the name of the petitioner was not effected till date by the revenue authorities. In Ext.P3 encumbrance certificate produced by the petitioner for the period from 05.07.2009 to 14.07.2024, no liability or encumbrance over the property is seen entered. But, according to the respondents there is an attachment order against the 6 W.P.(C)No.29439 of 2024 2025:KER:6203 property from the District Court, Thodupuzha, as per the order dated 25.05.2015 passed in I.A No.168 of 2015 in (Arb) No. 39 of 2015 and the basic tax can be collected from the petitioner after effecting mutation only if the attachment is lifted.

7. In Vijayarajan [2013 (2) KLT SN 119] this Court considered the issue of payment of land tax in the case of pendency of a civil suit or revenue recovery proceedings involving the owner of the land. In the said judgment, this Court held that the payment of land tax is to be made by the holder of the land and the same is in tune with the relevant provisions of the Kerala Land Tax Act. The acceptance of land tax in no way is detrimental to the interest of the 4 th respondent therein and as such, there is no rationale on the part of the concerned revenue authorities, refusing to accept the land tax in respect of the property, merely by referring to the attachment order issued by the Deputy Tahsildar (Revenue Recovery).

8. In Geroge Pothen and others v. State of Kerala 7 W.P.(C)No.29439 of 2024 2025:KER:6203 and others [2018 (4) KHC 795] by referring to the judgment of this Court in Rimmy v. State of Kerala [2012 (4) KLT SN 104] and in Vijayarajan [2013 (2) KLT SN 119] this Court again held that the lad tax is to be collected from the Thandaper account even during the pendency of revenue recovery proceedings and mere attachment will not result in an encumbrance which would deprive state of its right to collect land revenue etc.

9. The collection of Land Tax in Kerala is governed by the provisions of the Kerala Land Tax Act, 1961 (the Act in short) and the rules made thereunder. As per Section 1(3) of the said Act, it has come into effect in the area comprising the former State of Travancore-Cochin with effect from 01.04.1956 and in the Malabar area with effect from 01.09.1957.

10. Section 3(1) of the Act defines 'basic tax' as the tax imposed under the provisions of the said Act. Section 3(3) of the Act defines landholder as under:

"3(3). 'landholder' 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;

(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;

(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;

(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]."

11. As per Section 5, the land in the former State of Travancore-Cochin area as well as the Malabar area shall be charged and levied with a tax called basic tax with effect from the notified date in the said Section. Section 5 reads thus:

"5. Charge of land tax.

(1)Subject to the provisions of this Act there shall be charged and levied a tax called "basic tax" on all lands, of whatever description and held under whatever tenure,-(i)situated in the area comprising the former State of Travancore-Cochin for every financial year commencing on and from the 1st day of April, 1956;

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(ii)situated in the Malabar area for the period commencing on and from the 1st day of September 1957, and ending on the 31st day of March, 1958, and thereafter for every financial year commencing on and from the 1st day of April 1958.

xxxxxxxx xxxxxxxx (2)The basic tax charged on any land shall be paid by the landholder of that land [before such date as may be prescribed]:

[Provided that where-

(i)the landholder in respect of any land is a person referred to in sub-clause (c) or sub-clause (d) of clause (3) of section 3;

(ii)such land is in the possession of a tenant or other person not being the landholder; and

(iii)the income obtained by the landholder from that land is less than the basic tax payable thereon, the excess of the basic tax over such income shall be paid by the tenant or other persons in possession].

((2A)Where the basic tax charged under this Act for any period before the 1st day of April, 1998, is in arrears, the same shall be paid before such date as may be specified by the Government in that behalf). (3)The basic tax charged and levied under this Act shall be deemed to be public revenue due on land within the meaning of the Revenue Recovery Act for the time being in force and shall be recoverable under the 10 W.P.(C)No.29439 of 2024 2025:KER:6203 provisions of that Act."

12. The rate of basic tax to be collected is mentioned in Section 6 of the Act which reads thus:

"6. Rate of basic tax.- "(1) Subject to the provisions of sub-section (2) of section 7, the basic tax charged and levied under section 5 shall be at the rates as mentioned in the TABLE.


                                 TABLE

       Sl. No.     Area             Extent             Rate

       1         Panchayat        Up to 8.1 Ares      Rs. 5 per Are
                   Area                                per annum
                                                      Rs. 8 per Are
                                   Above 8.1           per annum
                                   Ares
       2         Municipal         Up to       2.43   Rs.10       per
                 Council Area      Ares               Are         per
                                                      annum
                                                      Rs.15 per
                                   Above 2.43         Are per
                                   Ares               annum
       3         Municipal         Up to 1.62 Ares    Rs. 20      per
                 Corporation                          Are         per
                 Area                                 annum
                                   Above 1.62         Rs. 30      per
                                   Ares               Are         per
                                                      annum

(2) Notwithstanding anything contained in sub-section (1), where land-holder or other person liable to pay basic tax proves to the satisfaction of the prescribed authority that the gross income from any land was less 11 W.P.(C)No.29439 of 2024 2025:KER:6203 than "[twenty four rupees and seventy paise [per are]] per annum, the basic tax payable on such land shall be at a rate fixed by the prescribed authority calculated at one-fifth of the gross income from such land:

Provided that pending the fixation of the rate at which basic tax is payable on any land under this sub-section, the land-holder shall be liable to pay basic tax on such land at the rate of [four rupees and ninety four paise] [x x x x], and, on fixation of the rate of basic tax, the excess tax if any, paid or collected, shall be refunded to the person entitled thereof:

Provided further that the Government may, having regard to the potential productivity of any land used principally for growing,-

(a) coconut, arecanut, pepper, tea, coffee, rubber, cardamom or cashew; or

(b) any other special crop plant or tree that may be specified by the Government by notification in the Gazette, levy and collect [basic tax per are] at the rate of four rupees and ninety-four paise [x x x x] on such land, notwithstanding the fact that such crops, plants or trees had not begun to yield or bear and that for the time being no income was made from that land or that the income made was less than twenty four rupees and seventy paise [ x x x x ]] xxxxx Explanation 1. - For the purposes of this section 'gross 12 W.P.(C)No.29439 of 2024 2025:KER:6203 income' with reference to any land shall mean the gross income actually made from the land or the gross income that could be made the land with due diligence, whichever is higher.

Explanation 2. - Lands comprised in the same survey or sub-division number and held by the same landholder shall be treated as a single unit for calculating the gross income for the purposes of this section. Explanation 3. - For the purposes of calculating the gross income in money from any land the cash value of the produce from the land shall be commuted into money at the average market rate of such produce for six years immediately preceding the commencement of this Act.

(3)An application for fixation of the rate of basic tax under sub-section (2) shall be in the form specified by the Government by notification in the Gazette and shall be made to the prescribed authority within four months from the date of publication of such notification in the Gazette.[Provided that no application under this sub- section need be made by the landholder or any other person liable to pay the basic tax, in a case where a provisional notice of demand has been served on him under sub-section (2) of section 6A] (4)[ The prescribed authority shall, before passing orders on an application under sub-section (3), give notice to the landholder concerned and any other person liable to pay the basic tax to show cause against 13 W.P.(C)No.29439 of 2024 2025:KER:6203 the rate or amount of basic tax proposed to be fixed in respect of the land shall, as far as may be practicable, pass orders on the application within six months from the date of first appearance of the applicant] (5)The order of the prescribed authority, fixing the basic tax shall be communicated to the landholder concerned and any other person liable to pay the basic tax."

13. The manner of assessment of basic tax, provisional assessment of basic tax, special provisions relating to basic tax, the provision for appeal etc., are also stipulated in the Act. The reading of the provisions in the Act would make it clear that the intention behind the collection of basic tax from the landholders by the Government is the generation of revenue alone. The collection of basic tax will not give any special right over the property to the landholder.

14. This Court in Laila v. Village Officer, Thrikkovilvattom Village Office and others [2019 (3) KLT 1012] considered the issue of non-receipt of basic tax by the revenue authorities from the landholders stating the reason of the pendency of other legal proceedings and deprecated the said practice in strong words and directed to send a copy of the said judgment to the Chief Secretary to 14 W.P.(C)No.29439 of 2024 2025:KER:6203 Government of Kerala and the Principal Secretary to Government of Kerala in Revenue department etc., for information. Para 8 of the said judgment reads thus:

"8. Before parting with this case, it is pertinent to point out that this Court has observed in quite a few number of cases about the seriousness of the situation and had called upon the higher functionaries of the State administration to examine the seriousness and magnitude of the problem reflected in cases like this where the competent revenue officials are unnecessarily refusing to accept basic land tax on untenable and unsustainable grounds as in the instant case. This Court had also directed that certified copies of those judgments should also given to higher officials like the Chief Secretary to Government and the Addl. Secretary to Government in Revenue Department, etc. and so far it is not known whether any attempts have been made by them to alert the competent revenue officials in charge of revenue administration and who are in charge enforcement of the Kerala Land Tax Act and the rules framed thereunder for taking alert and vigilant measures to alleviate the grievances of the citizenry and also to ensure timely acceptance of basic land tax in respect of the Kerala Land Tax and the rules framed thereunder. As has been observed by this Court in some cases, it appears to the understanding of this Court that Kerala Land Tax Act is the only branch in taxation law 15 W.P.(C)No.29439 of 2024 2025:KER:6203 where the tax payers are running after the tax collectors to pay the tax dues and for reasons which are not easily fathomable, the tax collectors very often, as in the instant case, would adamantly refuse to accept basic land tax on untenable and unsustainable, which leads to serious loss of revenue to the public exchequer. Therefore, this state of affairs cannot be allowed to continue. Hence, this Court would alert the competent State authorities concerned that if dereliction and abdication of the statutory obligations and duties of the competent revenue officials like Tahsildar, Village Officer, etc. are continued to be exhibited as could be gathered by the nature of the litigations that may be posed before this Court, then this Court may be constrained to order that the competent revenue officials like Village Officer, Tahsildar, etc. would be liable to pay interest on the amount of land tax, which was refused to be accepted from the land holders concerned from the date of offer upto the date of actual payment, @ 18% p.a. so as to collect directly from the pay of the officials concerned to be credited to the treasury account concerned so that the public exchequer and public interest need not suffer due to the arbitrariness and illegalities committed in the enforcement of due collection land revenue under the provisions of the Kerala Land Tax Act, 1961 and the Kerala Land Tax Rules, 1972."

15. The 1st respondent Village Officer refused to receive basic tax from the petitioner stating the existence of an order 16 W.P.(C)No.29439 of 2024 2025:KER:6203 of attachment from a Civil Court. It is clear from the aforesaid provisions of law and judgments that the revenue officials cannot take such a stand. It is the duty of the 1 st respondent to receive the basic tax, and if necessary at the most, he can make an endorsement in the receipt to be issued to the landholder about the pendency of an attachment order or other proceedings against the land.

In such circumstances, we are inclined to dispose of this writ petition by directing the 1st respondent Village Officer, Kumily Village to receive the basic tax from the petitioner in respect of the property covered in Ext.P1 sale deed after taking necessary steps to effect mutation, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment.

Sd/-

ANIL K.NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE Sks 17 W.P.(C)No.29439 of 2024 2025:KER:6203 APPENDIX OF WP(C) 29439/2024 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE DOCUMENT NO.2811/2013 OF SRO, PEERMADE EXECUTED ON 11.09.2013 Exhibit P2 . A TRUE COPY OF THE APPLICATION DATED 05.08.2024 SUBMITTED BY THE PETITIONER FOR MUTATION OF THE PROPERTY MENTIONED IN EXHIBIT.P1 Exhibit P3 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.6347/2024 DATED 10.07.2024 ISSUED BY THE SUB REGISTRAR OFFICE, PEERMADE

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