Shaji vs Tahsildar
2021 Latest Caselaw 14225 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
        THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
                        WP(C) NO. 4802 OF 2017


PETITIONER :

            SHAJI
            AGED 46 YEARS
            S/O.PURUSHOTHAMAN, SHAJI COTTAGE, M.P.11/400, MUDAKKAL,
            POOVANATHUMOODU, ELAMBA P.O, CHIRAYANKEEZHU,
            THIRUVANANTHAPURAM

            BY ADV SRI.V.M.KRISHNAKUMAR



RESPONDENTS:

    1       THE TAHSILDAR
            CHIRAYANKEEZHU, TALUK OFFICE, CHIRAYANKEEZHU,
            THIRUVANANTHAPURAM, PIN 695304

    2       VILLAGE OFFICER
            VILLAGE OFFICE, ATTINGAL, THIRUVANANTHAPURAM,
            PIN695101


            BY ADV.SMT. MABLE C. KURIAN, GOVERNMENT PLEADER




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.4802/2017
                                  2


                 P.V.KUNHIKRISHNAN, J
           -------------------------------
                W.P.(C)No.4802 of 2017
          --------------------------------
         Dated this the 08th day of July 2021


                           JUDGMENT

According to the petitioner, he is in

possession of 50 cents of land in survey No.1237

and 1239 of Attingal village, which he obtained

as per Ext.P1 sale deed. The petitioner obtained

the said property from Smt.Sreerekha Vinu and

Sreerekha Vinu obtained the said property from

her mother Thulasi Bhai as per registered

settlement deed No.2124/2012. According to the

petitioner, Sreerekha had mutated the property

and the basic land tax for the property is paid

by her. Ext.P2 is the basic tax receipt. After

the purchase of the property by the petitioner,

petitioner had filed an application for mutating

the property in the revenue records in his name.

Ext.P3 is the receipt issued by the Village WP(C) NO.4802/2017

Officer accepting the fee for effecting mutation

of the property on the basis of Ext.P1 sale deed.

There was no response from the authorities.

Ultimately the office of the 1st respondent, as

per Ext.P4 letter, informed that the mutation is

not effected because of the pendancy of a civil

suit as OS.40/2015 before the Sub Court Attingal.

It is also stated that there is a vigilance case

pending regarding the extend of the property.

According to the petitioner the aforesaid suit

was filed by one Mr.Sunilkukar alleging that the

petitioner's seller Smt.Sreerekha Vinu is liable

to pay a sum of Rs.40 lakhs to him. In the

aforesaid suit an application for attachment

before judgment was filed and according to the

petitioner, the same was dismissed as per Ext.P5.

The learned counsel submitted that, the reason in

Ext.P4 for not accepting the tax is unsustainable

in the light of Exts.P6 and P7 judgments.

Therefore, this writ petition is filed with the

following prayers;

WP(C) NO.4802/2017

"i. Issue a writ in the nature of

mandamus commanding the respondents 1 and 2

to effect mutation of Ext.P1 property in

the name of the petitioner in the revenue

records within such time as may be fixed by

this Hon'ble Court and accept basic tax

from the petitioner for Ext.P1 property.

ii) Issue such other orders, writs or

directions as are deemed fit by this

Hon'ble court.

iii) award cost of this proceedings to the

petitioners."

2. The 1st respondent filed a statement

before this Court. The relevant paragraph of the

statement is extracted hereunder;

"4. On perusal of the village records, it was noticed that the area recorded in Thandapper 3076 was altered by someone. Original area consist in Thandapper 3073 in both of the above Survey numbers is 40 cents and it was altered to 50 cents and there by a total of 10 cents of land were added in Thandapper No.3073 without any competent order from the concerned authorities. Thereafter the same area was carried over to Thandapper No.15126. Here in this case the total area as per Sale Deed No.276/16 is 20.23 Ares (8.90 Ares in Survey 1237 and 11.33 Area in Survey 1239).

But the actual area available for mutation is only 40 cents. Therefore mutation WP(C) NO.4802/2017

cannot be carried out for the total area of 20.23 Ares. Moreover, someone has filed complaint before the Police Vigilance and Anti-corruption Bureau with regard to the alteration of Thandapper 15126 and a case has been registered and the same is under investigation. Moreover Original Suit No.40/2015 is pending before the Hon'ble Sub Court, Attingal with regard to the transfer of property comprised in Survey No.1237 and 1239 of Attingal Village."

3. Heard the learned counsel appearing for

the petitioner and the learned Government

Pleader.

4. It is true that there is some case

pending before the Vigilance and Anti-corruption

Bureau regarding the alteration of Thandapper.

It may also be correct that a suit is pending

before the civil court. These are not matters

for denying the petitioner to pay tax based on

Ext.P1. Admittedly, the petitioner is in

possession of the property. In such

circumstances, the denial on the part of the

respondents in accepting land tax cannot be

accepted. It is settled by several decisions of WP(C) NO.4802/2017

this Court and Apex court that mutation of

property and acceptance of tax will not by itself

either create or extinguish title nor has it any

presumptive value on title and it only enable the

person in whose favour the mutation has been

effected to pay land revenue in question, Larson

T.George v. State of Kerala[2019(1)KLT 128],

Sawarni Vs. Inder Kaur and others [1996(6) SCC

223] Sudan K.K. and Others v. State of Kerala and

Others[2013(4)KLT 563]

5. In the light of the above principle,

according to me, the respondents can be directed

to accept the tax subject to the Vigilance case

pending before the authorities and subject to the

suit if any.

6. Therefore, this Writ petition is allowed

in the following manner;

i) The respondent Nos.1 and 2 are directed

to effect the mutation of Ext.P1 property in the

name of the petitioner in the revenue records and

accept the tax from the petitioner for Ext.P1 WP(C) NO.4802/2017

property as expeditiously as possible, at any

rate, within a period of one month from the date

of receipt of a copy of this judgment.

ii) I make it clear that, the above

acceptance of tax and the mutation will be

subject to the result of the enquiry by the

Vigilance department and by the civil court in

the pending suit.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

DM WP(C) NO.4802/2017

APPENDIX OF WP(C) 4802/2017

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 276/2016 DATED 29.01.2016

EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT DATED 06.04.2015

EXHIBIT P3 TRUE COPY OF THE RECEIPT ISSUED BY THE VILLAGE OFFIER DATED 08.02.2016 FEE FOR EFFECTING THE MUTATION OF THE PROPERTY ON THE BASIS OF EXT P1 SALE DEED

EXHIBIT P4 TRUE COPY OF THE LETTER OF THE 1ST RESPONDENT DATED 19.01.2017

EXHIBIT P5 TRUE COPY OF THE ORDER OF THE SUB JUDGE ATTINGAL IN IA.NO. 841/2015 IN OS.NO. 40/2015 DATED 09.07.2015

EXHIBIT P6 TRUE COPY OF DECISION REPORTED IN 2009 (2) KHC 602

EXHIBIT P7 TRUE COPY OF DECISION REPORTED IN 2013 (4) KHC 201.

RESPONDENTS EXHIBITS:    NIL

                         //TRUE COPY//

                          PA TO JUDGE