Dr Valsa Thomas vs Tahsildar
2021 Latest Caselaw 11304 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                       WP(C).No.26592 OF 2020(Y)


PETITIONER/S:

                DR VALSA THOMAS,
                AGED 72 YEARS,
                W/O. K/O. K.L THOMAS, KANNAMPILLY ENCLAVE, VYTTILA,
                ERNAKULAM - 682019.

                BY ADVS.
                SRI.P.THOMAS GEEVERGHESE
                SRI.TONY THOMAS (INCHIPARAMBIL)
                SRI.E.S.FIROS
                SMT.AMRUTHA K.P.

RESPONDENT/S:

      1         TAHSILDAR,
                KUNNATHUNADU TALUK, PERUMBAVOOR, ERNAKULAM - 683542.

      2         VILLAGE OFFICER,
                VAZHAKKULAM VILLAGE, ERNAKULAM - 683105.

      3         REVENUE DIVISIONAL OFFICER,
                MINI CIVIL STATION, PEZHAKKAPALLY,
                MUVATTUPUZHA - 686673.

      4         LAND BOARD,
                ERNAKULAM, REPRESENTED BY ITS CHAIRMAN, DEPUTY
                COLLECTOR, COLLECTORATE, ERNAKULAM - 682030.

      5         STATE OF KERALA,
                REPRESENTED BY ITS PRINCIPAL SECRETARY TO REVENUE
                DEPARTMENT, THIRUVANANTHAPURAM - 695001.

                BY GOVERNMENT PLEADER SRI PP THAJUDEEN



     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD             ON
08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.26592 OF 2020(Y)               2




                                   JUDGMENT

The application filed by the petitioner seeking to effect mutation of property

having an extent of 15.60 Acres falling in Sy. No.406/2 in Block No.23 of

Vazhakkulam Village was rejected by the 1st respondent by Ext.P6 order. After

rejecting her application, the 1st respondent proceeded to direct the petitioner to

file ceiling return before the Taluk Land Board after entering upon a prima facie

finding that she is in possession of property much beyond the ceiling limit. The

above order is under challenge in this writ petition.

2. For deciding the issues raised, the facts which led to the passing of

the impugned order is required to be narrated in some detail.

According to the petitioner, Late P.C.Pothan, the father of the petitioner, the

petitioner herein and her sister Smt. Leelamma Pothan, acquired property having

an extent of 24 Hectors 80.19 Ares in Old Survey No.302/1N/1 of Vazhakulam

Village as per sale deed No.416 of 1967 of the Perumbavoor SRO. Ext.P1 partition

deed was later executed and property having an extent of 16.89 Acres in Re-

Sy.No.406/2 in Block No.23 was allotted to the petitioner. She has been remitting

tax in respect of the above property as is evident from Ext.P1(a) tax receipt. It is

contended that in the year 2005, there arose disputes between the family

members which led to the institution of O.S.No.142 of 2005 before the Munsiff

Court, Perumbavoor. The suit was compromised and Ext.P3 judgment was

rendered as per which, the petitioner's title and possession over about 15.96 Acres

stood declared. The petitioner refers to Ext.P2 and it is contended that the Rubber

Board has granted permit to replant 4.99 Hectares of land during the year 1988

and according to the petitioner, this record would reveal that the property is

nothing but a plantation entitled to exemption from ceiling limit under Section

81(1)(e) of the Kerala Land Reforms Act, 1963. The petitioner relies on Exts.P11

and P12 receipts dated 30.3.2012 and 22.3.2013 respectively, to bring home the

fact that plantation tax is being remitted by her. She contends that in order to

replant rubber, after slaughter tapping, the petitioner had to level the property for

which purpose she approached the jurisdictional Geologist for permission. By

Ext.P8 permit dated 2.5.2014, the petitioner was permitted to remove 1000 MT of

ordinary earth from an area of 80.94 Ares subject to payment of loyalty. She would

further contend that a mobile communication tower has also been erected in the

property as a public utility service. The petitioner states that armed with the

judgment and decree passed by the civil court, when she approached the 1st

respondent and filed an application to effect mutation in her favour in respect of

the entire property, no action was taken. She had to approach this Court with a

writ petition seeking directions. By Exhibit-P5 judgment, the 1st respondent was

directed to take up her application and take a decision within a time frame.

However, by the impugned order, the application filed by the petitioner stands

rejected.

3. Being aggrieved, the petitioner is before this Court seeking the

following reliefs:

i) Issue a writ of certiorari or other appropriate writ or order calling for records leading to Ext.P6 order, and quash the same as illegal, erroneous, and without jurisdiction.

ii) Issue a writ of mandamus or other appropriate writ or order directing the 1st and 2nd respondents to do mutation of properties covered under Ext.P3 & P3(a) judgment and decree, as declared therein, in the name of the petitioner;"

4. A counter affidavit has been filed by the 1st respondent. It is stated

that though the family of the petitioner were holding property in excess of 60

Acres, they failed to submit any ceiling return. It is further stated that after

receiving the application filed by the petitioner, a report was called for from the

Village Officer, Vazhakkulam. In the report, the Village Officer has reported that

the property is not being used as a plantation by the petitioner and that she has

excavated sand and has also put up constructions. It is contended that the land is

not being used as a plantation at present and even the predecessors in interest,

have not used the property as a plantation. It is further stated that the village

officer has reported that the land is not used for rubber cultivation and therefore,

the petitioner is in possession of excess land. Mutation of title can be effected and

tax can be accepted only after the petitioner surrenders the excess land in her

possession.

5. I have heard Sri. P.Thomas Geevarghese, the learned counsel

appearing for the petitioner and Smt. Mable C. Kurian, the learned Government

Pleader.

6. The petitioner has produced Ext.P7 report submitted by the Village

Officer before the 1st respondent, which document was relied on by the Tahsildar

to reject the application filed by the petitioner seeking to effect mutation of the

land. In Ext.P7 report, the Village Officer after physical inspection has reported

that in property having an extent of 15.60 Acres situated in Re-Sy No. 406/2 in

Block No.23, there are about 1500 rubber trees aged about 4 years, 1200 cashew

trees and some other saplings. He has also reported that he has perused the

plantation tax register and found that plantation tax was being remitted vide File

No.B9-114/79. However, he has also stated that no request has been made for

fixing the ceiling limit and also that sand has been removed from the property and

some constructions are taking place. Exts.P11 and P12 are the receipts

evidencing the payment of plantation tax by the petitioner. There appears to be

considerable merit in the contention of the learned counsel appearing for the

petitioner that the 1st respondent has passed the impugned order without taking

note of any of these aspects. The village officer after physical inspection has not

reported that the property is not a plantation. On the other hand, it has been

reported that rubber trees are situated in the property and that the petitioner has

been remitting plantation tax. The 1st respondent has not taken note of any of

these aspects.

7. The 1st respondent came to the conclusion that the petitioner has

removed huge amount of earth and that she is putting up constructions in the

property. The petitioner has contended that earth was removed in the year 2014

at the time of replanting the rubber and that she had sought for permission from

the Geologist. The construction that was taking place in the property is of a tele

communication tower as is evident from the impugned order. The mere fact that a

tower was constructed would not mean that the property would lose the status of

plantation, particularly when the records reveal that the petitioner has been paying

plantation tax.

8. It is apparent that the 1st respondent has passed the order without

proper application of mind. In that view of the matter, I am of the considered

opinion that Exhibit-P6 order passed by the Tahsildar cannot be sustained. The

same will stand set aside. The 1st respondent shall reconsider the application and

pass fresh orders with notice to the petitioner. The petitioner shall produce

documents in her possession to substantiate the fact that the property is a

plantation and the same would be used as such.

This writ petition is disposed of.

SD/-

RAJA VIJAYARAGHAVAN V

JUDGE DSV

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE READABLE COPY PARTITION DEED NO.

1278/1977 OF PERUMBAVOOR SRO

EXHIBIT P1(a) TRUE COPY OF UNMUTATED LAND TAX RECEIPT ISSUED TO THE PETITIONER IN THE YEAR 2018.

EXHIBIT P2 TRUE COPY OF RUBBER BOARD REGISTRATION OF THE PETITIONER'S LAND.

EXHIBIT P3 THE TRUE COPY OF THE COMPROMISE JUDGMENT IN OS 142/2005 OF MUNSIFFS COURT, PERUMBAVOOR.

 EXHIBIT P3(a)       THE TRUE COPY OF THE DECREE IN OS
                     142/2005 OF MUNSIFF'S COURT,
                     PERUMBAVOOR,

 EXHIBIT P4          TRUE COPY OF APPLICATION DATED 6TH
                     AUGUST 2020.

 EXHIBIT P5          TRUE COPY OF JUDGMENT IN WP(C) NO.
                     16887/2020 DATED 22/09/2020.

 EXHIBIT P6          TRUE COPY OF ORDER DATED 29.09.2020 IN
                     FILE NO.3000/19 PASSED BY RESPONDENT.

 EXHIBIT P7          TRUE COPY REPORT NO.136/20 DATED
                     25.09.2020 OF VILLAGE OFFICER,
                     VAZHAKKULAM TO RESPONDENT.

 EXHIBIT P8          TRUE COPY OF QUARRYING PERMIT NO.34/14-
                     15/MM/QP/OE/DOE/5019/E2/13 DATED
                     2.5.2014 FOR EXTRACTION OF ORDINARY
                     EARTH DATED 2.5.2014 ISSUED BY
                     GEOLOGIST.

 EXHIBIT P9          TRUE COPY OF NO-OBJECTION CERTIFICATE IN
                     FILE NO. L12-40063/13 DATED 30.08.2013
                     ISSUED BY THE DISTRICT COLLECTOR.

 EXHIBIT P10         PHOTOGRAPHS OF THE PLANTATION TAKEN ON
                     22.11.2020.




 EXHIBIT P11         TRUE COPY OF THE TAX RECEIPT ISSUED BY
                     VILLAGE OFFICER VAZHAKKULAM DATED
                     30.3.3012.

 EXHIBIT P12         TRUE COPY OF THE TAX RECEIPT ISSUED BY
                     VILLAGE OFFICER VAZHAKKULAM DATED
                     22.3.2013.


 RESPONDENT'S/S EXHIBITS:

                      NIL




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