Kerala High Court
Kabeer vs Village Officer on 23 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942
WP(C).No.21853 OF 2019(F)
PETITIONER/S:
KABEER,
AGED 35 YEARS,
S/O.KARIKKAL ALAVI, KARAKKUNNAM DESOM,
KARAKKUNNU.P.O, MALAPPURAM-676123.
BY ADVS.
SRI.M.H.ASIF ALI
SRI.ROHIT NANDAKUMAR
SMT.SHAIMA VAHAB
RESPONDENT/S:
1 VILLAGE OFFICER,
KARAKKUNNU VILLAGE, VILLAGE OFFICE, KARAKKUNNU,
MALAPPURAM -676123.
2 TAHASILDHAR,
ERANAD TALUK OFFICE, MANJERI, MALAPPURAM-676517.
3 THE DISTRICT COLLECTOR,
COLLECTORATE, CIVIL STATION, MALAPPURAM -676505.
* ADDL.R4 TO R7 IMPLEADED:
4 ABDUL NAZAR,
AGED 47 YEARS,
S/O.POONTHIRUTHI KUNJAHAMMED, ERNADU,
KARAKKUNNU P.O, MALAPPURAM - 676 123.
5 ABDUL MAJEED,
AGED 52 YEARS,
S/O.POONTHIRUTHI KUNJAHAMMED, ERNADU,
KARAKKUNNU P.O, MALAPPURAM - 676 123.
6 MARIYUMMA,
AGED 58 YEARS,
D/O.POONTHIRUTHI KUNJAHAMMED, ERNADU,
KARAKKUNNU P.O, MALAPPURAM - 676 123.
7 SUHARABI,
AGED 50 YEARS,
WP(C).No.21853 OF 2019 2
W/O.KAPOOR MOYTHEEN,
PAYYANADU, NELLIKKUTHU P O,
MALAPPURAM - 676 122.
* ADDITIONAL RESPONDENT NOS.4 TO 7 ARE IMPLEADED AS
PER ORDER DATED 19/09/2019 IN IA.NO.1/2019.
R1 TO R3 BY SR.GOVERNMENT PLEADER SMT.SHEEJA C S
R4 & R5 BY ADV. SRI.C.DINESH
R6 BY ADV. SMT.M.R.MINI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.21853 OF 2019 3
JUDGMENT
The petitioner states that he is the owner in title and possession of
property having an extent of 2.84 Ares comprised in Re-Sy No.193/5 in Block
No. 66 of Karakkunnu village. He acquired rights over the property on the
cover of Ext.P1 settlement deed executed by his mother in his favour.
Reference is made to Ext.P2 and it is contended that the petitioner has
remitted tax on 23.1.2017 in respect of the above item of property.
2. According to the petitioner, the additional 4th respondent, who is
his uncle has instituted O.S.No.337 of 2016 before the Munsiff Court, Manjeri
seeking partition. The learned Munsiff has passed an order of injunction
interdicting the defendant and their men from committing any act of waste.
The petitioner later got impleaded and is contesting the proceeding.
3. The petitioner states that the learned Munsiff has not interdicted
the revenue authorities from effecting mutation or in accepting tax.
However, when the petitioner approached, the 1st respondent seeking for
issuance of a possession certificate and for remitting land tax in respect of
the property covered under Exts.P1 and P2, his request was refused. The
petitioner states that being aggrieved, he approached the 2nd respondent
and sought for issuance of directions to the 1st respondent to issue the
documents sought for. By Ext.P6 communication dated 7.9.2018, the 2nd
respondent is stated to have clarified that there is no impediment in
collecting tax and in issuing possession certificate, since no interdictory
orders have been passed by the Civil Court. He contends that later Ext.P10
order was passed by the Tahsildar on the basis of legal opinion received from
the office of the District Government Pleader that the request made by the
petitioner need not be accepted due to the pendency of the suit. It is in the
aforesaid background that the petitioner is before this Court seeking to quash
Ext.P4, P7 and P10 and for a further direction to the 1st respondent to
receive land tax and issue possession certificate to the petitioner in respect of
property covered under Ext.P1 settlement deed.
4. The additional 4th respondent has filed a counter affidavit
wherein it is stated that what has been transferred to the petitioner is
property having an extent of 2.84 Ares falling in Sy. No.193/10. Reference is
made to Ext.R4(b) and it is contended that the property settled in favour of
the petitioner by his mother was in fact acquired by her from Sri. Majeed, her
brother by Ext.R4(b) sale deed. The Survey number of the assigned property
is Re-Sy. No.193/9 of Karakkunnu village and not Re-Sy. No.193/10 as
erroneously stated in Ext.P1. It is contended that it was with ill motive that
the Re-Survey number of the property was shown as 193/10 in Ext.P1 deed
instead of Re-sy.No.193/9 and thereafter the petitioner managed to remit the
tax as per Ext.P2 by showing the Survey number as Sy.No.193/10 (193/5).
According to the respondents, the manipulations which have been carried out
by the petitioner is clear from Ext.R4(a) to Ext.R4(c) and the petitioner
having approached this Court with unclean hands, is not entitled to any
discretionary relief.
5. A statement has been filed by the 2nd respondent as directed by
this Court. It is stated that Smt. Mariyam, the mother of the petitioner had
approached the 1st respondent in the year 2016 and had requested for
tracing out the correct Survey Number of the property obtained by her from
Sri. Majeed. The 1st respondent with the assistance of the Taluk Surveyor,
Ernad has identified the resurvey number and it was found to be Re-
Sy.No.193/5 of Block No.66 of Karakkunnu village. The mother of the
petitioner was asked to file an appropriate application to correct the survey
number. However, without doing so, she transferred the whole extent to the
petitioner. It is also stated that old Survey Number 193/9 and 193/5 of Block
Number 66 is Sy.No.383/1 of Karakkunnu village.
6. Sri. M.H. Asif Ali, the learned counsel appearing for the petitioner
submits that in view of the statement filed by the 2nd respondent, the
petitioner shall approach the concerned respondent and file application for
correction of Re-survey number. It is submitted that after effecting
correction, he shall file a fresh application to remit land tax and for issuance
of possession certificate. The learned counsel prays that necessary directions
be issued to the said respondent to consider his application in the light of the
various precedents. The learned counsel would rely on the decisions of this
Court in Rajkumar S. and Others v. Tahsildar, Devikulam 1, Sudan K.K. and
Ors. V. State of Kerala and Ors.2, George Pothen and Others v. State of
Kerala and Others3 and in Larson T. George v. State of Kerala 4, to bring
home his point that a landholder is liable to pay tax and the same is bound to
be accepted by the revenue authorities. He would contend that in Sawarni
(Smt.) v. Inderkaur (Smt.) and Others 5, the Supreme Court has held
that mutation of property and acceptance of land tax will not, by itself either
create or extinguish title nor has it any presumptive value on title and it only
enables the person in whose favour the mutation has been effected to pay
land revenue in question. He would also rely on a decision of this Court in
Nevin Raju v. S. Basheer and Ors 6 and it is argued that pendency of civil
cases is no reason or an impediment for effecting mutation unless specific
interdictory orders are issued by the civil court.
7. I have heard Sri. C. Dinesh, who submitted that the attempt of
the petitioner is to remit tax in respect of an item of property over which he
has no right. He would also contend that in view of the pendency of the civil
suit the revenue authorities were justified in refusing his request.
8. The learned Government Pleader submits that it is for the
petitioner to approach the authorities seeking correction of survey number.
1 (2020 (3) KHC 270)
2 (2013 (4) KHC 201)
3 (2018 (4) KHC 7958)
4 (2018 (5) KHC 960)
5 (1996 KHC 964)
6 (2015 (3) KLJ 197)
Only thereafter can his application be entertained and a decision be taken on
the basis of the precedents cited.
9. I have considered the submissions advanced. From the
statement filed by the learned Government Pleader, it is apparent that some
mistakes have been crept in, insofar as the re-survey number of the property
is concerned. In Ext.P1 and P2, the Survey Number is shown as 193/10
whereas in the prior deed, the Sy. No. is shown as Re-Sy. No.193/9. It is
seen that in Ext.P2, Re-Sy. No.193/5 is also seen written. It appears from
the statement filed by the 2nd respondent that the correct re-survey number
of the land is Re-Sy. No.193/5 of Block No.66 of Karakkunnu Village and it
forms part of Old Sy. No.383/1 of Karakkunnu Village. In that view of the
matter, the following orders are issued;
a) The petitioner shall approach the 2nd respondent and file
an application to correct the Re-survey number from 193/10 to
193/5 of Block No.66 of Karakkunnu Village. On such an
application being filed within a period of three weeks from today,
the competent among respondents shall take up the same and
pass orders as per procedure and in accordance with law with
notice to the petitioner and affected parties.
b) If correction is made, the petitioner may file an
application to issue possession certificate and to effect mutation
and remit tax in respect of the property. The said application shall
be taken up and orders shall be passed in the light of the
precedents cited supra. Orders shall be passed in such case,
expeditiously, at any rate, within a period of 2 months from the
date of filing of the application.
This petition is disposed of.
SD/-
RAJA VIJAYARAGHAVAN V
JUDGE
ps
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SETTLEMENT DEED
NO.207/1/17 OF MANJERI S.R.O.
DT.11.01.2017.
EXHIBIT P2 A TRUE COPY OF THE LAND TAX RECEIPT IN
RESPECT OF PROPERTY IN RE.SY NO.193/5 IN
BLOCK NO.66 OF KARAKKUNNU VILLAGE
DT.23.01.2017 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE AD INTERIM INJUNCTION
ORDER DT.29.09.2016 IN IA NO.2351/2016 IN
OS.337/2016.
EXHIBIT P4 A TRUE COPY OF COMMUNICATION DATED
28/04/2017 ISSUED TO THE PETITIONER BY
THE 1ST RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE APPLICATION DATED
30.06.2017 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
EXHIBIT P6 A TRUE COPY OF COMMUNICATION
DT.07.09.2018 ISSUED BY THE 2ND
RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT P7 A TRUE COPY OF LETTER BEARING NO.230/2018
DATED 22/09/2018 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P8 A TRUE COPY OF APPLICATION DATED
19/09/2018 PREFERRED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF APPLICATION DATED 06/10/2018
PREFERRED BY THE PETITIONER BEFORE THE
2ND RESPONDENT.
EXHIBIT P10 A TRUE COPY OF COMMUNICATION BEARING
NO.B2-7359/17 DT.01.04.2019 BY THE 2ND
RESPONDENT.
EXHIBIT P11 A TRUE COPY OF LEGAL OPINION NUMBERED AS
D.143/19 DATED 27/03/2019 FROM THE OFFICE
OF DISTRICT GOVERNMENT PLEADER, MANJERI
RESPONDENT'S/S EXHIBITS:
EXHIBIT R4(a) TRUE COPY OF THE SALE DEED NO.247/1998 OF
MANJERI SUB REGISTRY DATED 18.1.1988.
EXHIBIT R4(b) TRUE COPY OF THE SALE DEED BEARING
NO.1803 OF 2001 DATED 26.4.2001.
EXHIBIT R4(c) TRUE COPY OF THE DOCUMENT NO.1149 OF 2018
DATED 11.5.2018.
EXHIBIT R4(d) TRUE COPY OF THE PLAINT IN O.S.337 OF
2016 PENDING BEFORE THE MUNSIFF COURT,
MANJERI DATED 9.9.2016.
//TRUE COPY// P.A.TO JUDGE
