Kerala High Court
Joseph K.J vs The District Collector on 6 July, 2021
W.P.(C.) No.59 of 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
WP(C) NO. 59 OF 2021
PETITIONER/S:
JOSEPH K.J
AGED 67 YEARS
S/O. OUSEPH, KAADAMPARAMBIL HOUSE, MOOLAMPILLY P.O, KADAMAKKUDY,
ERNAKULAM, KERALA - 682027.
BY ADVS.
LAL K.JOSEPH
SRI.A.A.ZIYAD RAHMAN
SRI.ANZIL SALIM
SHRI.CHACKO MATHEWS K.
RESPONDENT/S:
1 THE DISTRICT COLLECTOR
CIVIL STATION, KAKKANAD, ERNAKULAM - 682030.
2 *THE TAHSILDAR,
KANAYANOOR TALUK, NEAR SUBHASH PARK, PARK AVENUE ROAD, ERNAKULAM -
682011.
* ADDRESS OF 2ND RESPONDENT SUO MOTU CORRECTED
THE TAHSILDAR (LR)
KANAYANNOOR TALUK
NEAR SUBHASH PARK, PARK AVE ROAD,
ERNAKULAM 682 011
3 THE TALUK SURVEYOR,
KANAYANOOR TALUK, NEAR SUBHASH PARK, PARK AVE ROAD, ERNAKULAM -
682011.
4 THE VILLAGE OFFICER,
KADAMAKKUDY VILLAGE, PIZHALA, ERNAKULAM - 682027.
5 DASAN
THUNDIYIL HOUSE, RATION SHOP ROAD, MOOLAMPILLY, ERNAKULAM - 682027.
6 LUCY JOSEPH
KURUSHUPARAMBIL HOUSE, RATION SHOP ROAD, MOOLAMPILLY, ERNAKULAM -
682027.
BY ADVS.
GOVERNMENT PLEADER
SMT.SHERLY THOMAS
OTHER PRESENT:
SMT.SHEEJA.C.S., GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C.) No.59 of 2021 2
P.V.KUNHIKRISHNAN, J
---------------------------------------
W.P.(C.) No.59 of 2021
--------------------------------------
Dated this the 6th day of July, 2021
JUDGMENT
According to the petitioner, he is the absolute owner in
possession and enjoyment of the landed property having an
extent of 36 cents of land comprised in re-survey No. 549/1
(Sy.No.613/5) of Kadamakkudy Village covered by item No.1
of C schedule of the registered will No.1/1965 dated
1.1.1965 of SRO, Njarakkal executed by his mother, late
Thresia. Ext.P1 is the will. During the lifetime of Thresia, she
had also executed Ext.P2 sale deed assigning 6.07 ares (15
cents) comprised in Sy.No.613/5 of Kadamakkudy Village.
According to the petitioner, he was in possession and
enjoyment of 20.85 ares of land comprised in Sy.No.613/5.
Ext.P3 is the tax receipt. The petitioner assigned 5.5 cents of
land to one Vareed Chandy as 'Kudikidappu' as revealed from
purchase certificate dated 12.9.1978 issued by the Land
Tribunal, Ernakulam. Ext. P4 is the purchase certificate. The
petitioner had also granted 5.50 cents as Kudikidappu right
to late Thresia Joseph and her legal heir, 6 th respondent.
Apart from the said property, 2.5 cents assigned to
Mr.Augustine Babu. Further, 2 cents were left apart as a
pathway leading to the properties of Mr.Augustine Babu and
respondent Nos.5 and 6. Ext.P5 is produced by the
petitioner, which according to him, is the rough sketch of the
property,with the measurements prepared with the help of a
surveyor.
2. The petitioner had filed an application in the year
2017 to demarcate the boundary in accordance to Ext.P5.
The 2nd respondent had conducted an enquiry and failed to
measure the boundaries. According to them, the 5 th and 6th
respondents are not co-operating. Therefore, the petitioner
submitted Ext.P6 and P6(a) before the 3 rd respondent.
According to the petitioner, in the light of the law flowing
out from Sec.3(3) r/w 5(2) of the Kerala Land Tax Act, 1961,
the 2nd, 3rd and 4th respondents are under statutory obligation
and duty to collect tax from the land holder as understood in
Sec. 3(3). According to the petitioner, they are not
measuring the property, so as to enable the petitioner to pay
tax. Hence, this writ petition is filed with the following
prayers :
"i) Issue a Writ of Mandamus or any other appropriate
Writ or order directing the 2 nd and 3rd respondent to consider
the Exbt.P6 application for measuring and demarcating the
property covered under Exbt.P1 and Exbt.P2 comprised in
Survey No.613/5 of Kadamakkudy Village within a specific
time frame.
ii) Issue a Writ of Mandamus or any other appropriate
Writ or order directing the 4th respondent to accept the land
tax in respect of the remaining property covered by Exbt P1
and Exbt P2.
iii) Pass such other orders which this Honourable Court
may deem fit in the facts and circumstances of the case."
3. The Government Pleader filed a statement in
which, certain contentions were raised. The relevant portion
of the statement is extracted hereunder :
"According to Taluk Surveyor's report the property owned by
Mr.Joseph K J by a registered Will No.1/1968 of Njarakkal
Sub Registrar Office is comprised in the block 1 survey
359/6. 536/11 of Kadamakkudy Village and this property is
not surveyed and demarcated during resurvey process and
more over no thandaper account has been generated in the
name of land holder. As per the Rule 43 of Kerala Survey and
Boundaries Act 1964, an application in the form No.10 to the
Tahasildar by "registered landholder" for the pointing out
boundaries of registered lands already surveyed and
demarcated cannot be applicable in Mr.Jospeh K.J. is
application dated 20.02.2020. The Taluk Surveyor has
informed that the said land is not registered in the name of
applicant and hence he has to register the land in the
Kadamakkudy Village before apply for the survey and
demarcation. For registering the land in Kadamakkudy
Village the applicant can apply according to Rule 2(1)
Transfer of Registry Rules 1966. Then the Village Officer
could act according to Rule 3 (i) (a) and a new thandaper
number will generate in the name of the land owner for the
said property. After that the Taluk Surveyor can point out the
boundary as per the Rule 43 of Kerala State Boundaries Act
1964."
4. The petitioner filed a reply statement, disputing
the facts in the statement and submitted that there are
documents in his favour to show that it is registered in the
thandaper register. Ext.P6 (a) is the Thandaper extract. Ext.
P7 is the field maps of re-survey Nos. 536 and 539.
5. In the light of the reply statement, the Government
Pleader submitted that he will get further instructions.
Accordingly, after getting instructions, the Government
Pleader submitted that 2nd and 3rd respondents will consider
the prayer in the writ petition, after hearing the petitioner
and will do the needful within 6 months. The learned counsel
for the petitioner submitted that he is behind the
respondents for paying tax to his land and hence the time
limit may be reduced. After hearing both sides, the 2 nd and
3rd respondents will complete the exercise within 4 months
from the date of receipt of a copy of this judgment.
Therefore, this writ petition is disposed with the
following directions.
1) The second and third respondents will take necessary
steps for measuring and demarcating the property, covered by
Exts.P1 and P2 comprised in old survey No. 613/5 (re-survey
details in Ext. P7 and P7a) of Kadamakkudy Village, as
expeditiously as possible, at any rate, within 4 months from the
date of receipt of a copy of this judgment, if necessary after
hearing the petitioner also.
2) Immediately after the above exercise, the 4 th respondent is
directed to accept the land tax in respect of the remaining
property covered by Exts. P1 and P2.
3) The petitioner will co-operates with the official respondents
by supplying all necessary documents.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 59/2021
PETITIONER ANNEXURE
EXHIBIT P1 TRUE COPY OF THE REGISTERED WILL NO.
1/1965 DATED 1.1.1965 OF SRO NJARAKKAL.
EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.1389/88
DATED 30.6.1988 OF SRO NJARAKKAL.
EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT DATED
21.4.2012.
EXHIBIT P4 TRUE COPY OF THE PURCHASE CERTIFICATE
DATED 12.09.1978 ISSUED BY THE LAND
TRIBUNAL ERNAKULAM.
EXHIBIT P5 TRUE COPY OF THE ROUGH SKETCH OF THE
PROPERTY WITH THE MEASUREMENTS PREPARED
WITH THE HELP OF A SURVEYOR.
EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED
19.02.2020 GIVEN BY THE PETITIONER TO THE
3RD RESPONDENT FOR SURVEYING AND
MEASURING THE REMAINING EXTENT OF LAND
COVERED BY EXHIBIT P1 AND EXHIBIT P2.
EXHIBIT P7 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT
DATED 18.03.2020.
