Kerala High Court
Rahulan vs Tahasildar (Lr) on 7 July, 2021
WP(C) NO. 7109 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
WP(C) NO. 7109 OF 2021
PETITIONER:
RAHULAN
AGED 51 YEARS
S/O.RAGHAVAN PILLAI, BHAVANI MANDIRAM,
EROOR VILLAGE, PUNALUR TALUK, KOLLAM-691312.
BY ADV ARUN BABU
RESPONDENTS:
1 TAHASILDAR (LR)
TALUK OFFICE, MINI CIVIL STATION, PUNALUR,
KOLLAM-691305.
2 VILLAGE OFFICER,
OFFICE OF VILLAGE OFFICER ANCHAL, EROOR,
ANCHAL, KOLLAM-691306.
3 SOUMYA,
AGED 31 YEARS
D/O. PUSHKALA, PANKAJAVILASOM HOUSE, CHINGELI MURI,
PULIPPARA P.O., KADAIKKAL VILLAGE,
KOTTARAKKARA TALUK, KOLLAM-691536.
BY ADV SRI.R.KRISHNAKUMAR (CHERTHALA)
SMT K AMMINIKUTTY K, SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 7109 OF 2021 2
JUDGMENT
"CR"
The petitioner purchased an item of property having an extent of 81
Ares and 10 sq meters in Resurvey No.428/1 of Anchal village from a certain
Gopinathan Nair as per Exhibit P1 sale deed executed and registered on
02/11/2020. The petitioner approached the revenue authorities and after
following the procedure under the Transfer of Registry Rules, 1966, effected
mutation and he was allotted a Thandaper number as 9995. Being the holder
of land, he proceeded to remit land tax. Exhibit P2 is the land tax receipt
issued by the second respondent on 18.12.2020. However, without notice to
the petitioner, by Exhibit P5 proceedings, the Thandaper number allotted was
cancelled and the earlier Thandapper was restored. This was for the reason
that the property was attached by the Family court on a petition filed by the
daughter-in-law of his vendor. Ext.P4 is a letter issued by the 2nd respondent
informing the petitioner that the Thandaper number allotted to him was being
cancelled as per the directions issued by the Tahsildar. It is in the afore
circumstances that the petitioner is before this Court seeking to quash Exhibits
P4 and P5 and for a declaration that the petitioner is entitled to retain the
property covered in Exhibit P1 in the Transfer of Registry notwithstanding the
attachment.
2. Sri.Arun Babu, the learned counsel appearing for the petitioner
pointed out that the petitioner purchased the property on 2.11.2020. He
would refer to Exhibit P6 Encumbrance certificate and it was urged that the
attachment of the Family court was registered only on 4.11.2020, much after
the registration of Exhibit P1 deed. According to the learned counsel, the
relevant statutory Rules do not confer any powers to the respondent Nos.1
and 2 to initiate any suo moto proceeding to cancel the Thandapper as has
been done in the instant case. The fact that the petitioner was not put on
notice and his version was not heard was also highlighted by the learned
counsel. Finally, it is submitted that a subsequent attachment would not affect
the right of the petitioner, who as the land holder, is bound to remit land tax
as per the provisions of the Land Tax Act.
3. The learned Government pleader on instructions submitted that
no notice was served on the petitioner before proceeding to pass Exhibit P5
order.
4. The learned counsel appearing for the party respondent
submitted that the petitioner is a real estate broker and he had colluded with
the father-in-law of the 3rd respondent and had got the property assigned in
his name to prevent the 3rd respondent from realizing the amount lawfully
due to her.
5. I have considered the submissions advanced. Ext.P1 is the
assignment deed dated 2.11.2020 executed by Sri. Gopinathan Nair in favour
of the petitioner. Ext.P2 would reveal that the petitioner has remitted tax as
per Thandaper number 9995, which has been allotted by the revenue
authorities. It is emphatically clear from Ext.P6 Encumbrance certificate that
the attachment of the property covered under Ext.P1 was effected on
4.11.2020 pursuant to orders passed in O.P.No.310/2020 on the files of the
Family Court, Kottarakkara. From Ext.P4 letter issued by the Village Officer, it
is apparent that the 3rd respondent had lodged a complaint before the
Tahsildar and it was pursuant to orders passed by the said authority that
mutation was cancelled. In Ext.P5 letter issued by the 1st respondent to the
3rd respondent, the Tahsildar has informed that the Thandaper issued has
been cancelled and the earlier Thandaper number was restored.
6. Rule 15 of the Transfer of Registry reads thus:
15. With the help of the details furnished in the statement in Form 'A'
prepared by the Village Officers and such further information as the
Tahsildar may receive from parties and village officials at the time
of enquiry regarding the fact of possession and enjoyment,
payment of tax and other particulars, the Tahsildar shall determine
the person in whose name the transfer of registry shall be made.
No case shall be rejected solely for the default of appearance of the
parties as it is the immediate concern of the Land Revenue
Department to keep the thandaper accounts (Chitta) upto date and
bring into it the names of the real land-holders who shall be held
liable for the payment of Government revenue due on the land.
7. As per Rule 15, when an application is presented to a Revenue
Officer seeking transfer of Registry, the Tahsildar may call for details from
the Village Officer and after securing information from the parties, regarding
the fact of possession and enjoyment, payment of tax and other particulars,
the Tahsildar has to determine the person in whose name the transfer of
Registry shall be made. It further provides that the most important concern
of the Land Revenue Department is to keep the Thandaper accounts (Chittal)
up-to-date and bring into it the names of the real land holders, who shall be
held liable for payment of Government revenue due on land. It would be
worthwhile to remember that under Section 5 of the Land Tax Act, 1961,
there shall be charged and levied a tax called (Basic tax) on all lands and it
has to be paid by the landholder of the land. Land holder has been defined
under Section 3(c)(d) in relation to land not falling within (a) to (c) of Section
3, the registered holder for the time being of such land.
8. Rule 18 of the Transfer of Registry Rules reads as follows:
Rule 18.
(i) An appeal against an order passed by the Village Officer or the Revenue
Inspector shall lie to the Tahsildar and an appeal against the order
passed by the Tahsildar or the Deputy Tahsildar shall lie to the
Revenue Divisional Officer. Appeals shall be presented within 30 days
from the date of receipt of the order. In computing the period of 30
days, the time taken for obtaining a copy of the order shall be
excluded.
(ii) The appellate authority may admit an appeal after the expiry of the
prescribed period of 30 days if he is satisfied that the appellant has
good and sufficient cause of not preferring the appeal within that
period. In such cases, the authority who admits the appeal shall
record the fact of having condoned the delay.
(iii) No appeal shall be admitted unless accompanied by the original of a
certified copy of the order appealed against. (The certified copies shall
be prepared on stamp paper and signed by competent authority). No
officer shall decide a case in appeal without giving notice to the
parties who are affected by the decision and without giving them an
opportunity to be heard.
(iv) it shall be open to the District Collector if he is satisfied that sufficient
ground exists to revise, cancel or alter on his own motion or otherwise
any decision or order passed by the Revenue Inspector, Deputy
Tahsildar, Tahsildar or the Revenue Divisional Officer within a period
of 15[five years] from the date of such decision.
(v) No revision shall however be entertained by the District Collector unless
the parties have exercised the right of appeal prescribed under these
rules. No order in revision interfering with the original order shall be
passed without giving to the party or parties affected thereby a
reasonable opportunity of being heard. The revision petition presented
by the parties shall be accompanied by the original or a certified copy
of the order sought to be revised. The certified copies shall be
prepared on stamp paper of sufficient value. The District Collector
shall take up a revision case and decide it if it comes to his knowledge
that there is a likelihood of the Government being involved in a Civil
Suit.
9. Rule 18 provides for a grievance redressal mechanism which is
available to any person who is aggrieved by an order passed by the revenue
authorities. A remedy of appeal is provided before the superior authority.
Rule 18(iii) mandates that no officer shall decide a case on appeal without
giving notice to the parties who are affected by the decision and without
giving them an opportunity of being heard. However, powers have been
conferred to the District Collector, on him being satisfied that sufficient
ground exists to revise, cancel or alter on his own motion or otherwise any
decision or order passed by his subordinate officers. Rule 18(v) says that the
District Collector shall not pass any order without giving the party concerned a
reasonable opportunity of being heard.
10. There cannot be any doubt that the observance of the principles
of natural justice is fundamental to the discharge of any quasi judicial
function. In the case on hand, admittedly, no proceeding as contemplated
under Rule 18 was initiated. Before passing Ext.P5 order, the petitioner was
not put on notice. The procedure adopted by the respondents is in blatant
violation of the relevant Rules as well. I have no doubt in my mind that the
impugned order has been passed in clear violation of the principles of natural
justice and against the provisions of the relevant rules.
11. There is yet another matter. Under Order XXXVIII Rule 10 of the
Code of Civil Procedure, attachment before judgment shall not affect the
rights, existing prior to the attachment, or persons not parties to the suit.
Section 64 of the CPC states that where an attachment has been made, any
private transfer or delivery of the property attached or of any interest therein
and any payment to the judgment debtor of any debt, dividend or other
monies contrary to such attachment, shall be void against as against all claims
enforceable under the attachment. In the instant case, from Ext.P6 it is
evident that the attachment was effected much after the registration of the
sale deed in favour of the petitioner. This aspect of the matter was not taken
note of by the revenue authorities. Furthermore, this Court, in Joseph
Kurian v. Village Officer [2010(3) KLT 251] had held in the context of the
Kerala Land Tax Act, 1961 that collection of land tax is for fiscal purpose and
therefore, the attachment cannot prevent the authority from receiving tax
from the land holder.
12. Having considered the entire facts, I am of the considered opinion
that Ext.P4 and P5 proceedings issued by the respondents 1 and 2 cannot be
sustained and the same will stand quashed. As a consequence, there will be a
direction to the respondents to restore Thandaper number 9995 to the name
of the petitioner and permit him to pay land tax.
This writ petition will stand allowed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
ps
APPENDIX OF WP(C) 7109/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE SALE DEED 1505/2020
DATED 2.11.2020 OF ANCHAL SRO.
EXHIBIT P2 THE TRUE COPY OF THE TAX PAID RECEIPT
DATED 18.12.2020 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P3 THE TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE DATED 28.10.2020 ISSUED FROM
THE ANCHAL SRO.
EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 3.3.2021
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P5 THE TRUE COPY OF THE LETTER DATED
23.1.2021 ISSUED BY THE 1ST RESPONDENT TO
THE 3RD RESPONDENT.
EXHIBIT P6 THE TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE DATED 5.3.2021 ISSUED FROM THE
ANCHAL SRO.
EXHIBIT P7 THE TRUE COPY OF THE JUDGMENT IN WP(C)
31021/2017 DATED 4.1.2018 IS PRODUCED.
RESPONDENTS EXHIBITS:
EXHIBIT R3A A TRUE COPY OF THE FIR IN CRIME
NO.345/2021 OF ANCHAL POLICE STATION DATED
17.3.2021.
EXHIBIT R3B A TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE PETITIONER BEFORE THE RDO, PUNALUR
DATED 24.12.2020.
EXHIBIT R3C A TRUE COPY OF THE NOTICE ISSUED BY THE
FAMILY COURT, KOTTARAKKARA DATED
3.11.2020.
