Mohammed Pullan vs State Of Kerala
2024 Latest Caselaw 5049 Ker

Kerala High Court

Mohammed Pullan vs State Of Kerala on 15 February, 2024

Author: Murali Purushothaman

Bench: Murali Purushothaman

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                     WP(C) NO. 34028 OF 2023
PETITIONER:

            MOHAMMED PULLAN
            AGED 70 YEARS
            S/O. ABDURAHIMANKUTTY,
            VATTAPOLIYIL HOUSE, MORAYUR.P.O.,
            MALAPPURAM DISTRICT,
            PIN - 673 642.

            BY ADV D.ANIL KUMAR


RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY SECRETARY,
            DEPARTMENT OF REVENUE, SECRETARIAT,
            THIRUVANANTHAPURAM, PIN - 695 001.
    2       THE DISTRICT COLLECTOR,
            MALAPPURAM DISTRICT,
            MALAPPURAM, PIN - 676 505.
    3       THE VILLAGE OFFICER
            VILLAGE OFFICE, PULPATTA,
            MALAPPURAM DISTRICT,
            PIN - 676 123.
 *ADDL.     MUHAMMED ASHRAF
   R4       AGED 40
            CPI(M) BRANCH SECRETARY,
            PARAMBAN HOUSE, PULPATTA.P.O.,
            MALAPPURAM DISTRICT,
            PIN - 676 123

            * ADDL. R4 IS IMPLEADED AS PER ORDER DATED
            11.12.2023 IN I.A NO.1 OF 2023.

            SMT.SHEEBA -   GP



     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON   15.02.2024,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C).No.34028 OF 2023

                                2




                              JUDGMENT

The petitioner has filed this writ petition

challenging Ext.P5 stop memo issued to him by the

3rd respondent, the Village Officer, stating that he is

carrying out unauthorised constructions in paddy

land. The petitioner is also directed to restore the

land to its original nature. The petitioner submits

that his property is not included in the Data Bank and

he has produced Ext.P7 communication issued by the

Agricultural Officer to show that the property is not

included in the Data Bank published under the Kerala

Conservation of Paddy Land and Wetland Act, 2008.

The petitioner also states that in the Basic Tax

Register, the property has been included as

'purayidam'. He states that the building is

constructed after obtaining building permit from the

Panchayat concerned.

WP(C).No.34028 OF 2023

2. The learned Government Pleader, on

instructions, submits that though the property of the

petitioner is recorded as 'purayidam' in the Basic Tax

Register, the property is wet land as per the 'A'

Register/settlement register. It is also stated that

when the Village Officer inspected the property on

28.02.2022, it was found to be a wet land on physical

appearance. The learned Government Pleader also

refers to Ext.P15 prior document of Ext.P1 sale deed

to show that the property is a wet land. It was in the

said circumstances that Ext.P5 stop memo was issued

to the petitioner.

3. This Court in Indira P.S and others V. Sub

Collector, Fort Kochi and another [2020 (4) KHC

33 : 2020 (4) KLT 635] had held that statutory

primacy should be given to the Basic Tax Register,

which is the statutory document prepared in terms of

the provisions contained in Rule 4 of the Kerala Land

Tax Rules, 1972 framed under the provisions of the WP(C).No.34028 OF 2023

Kerala Land Tax Act, 1961. In Indira's case (supra),

this Court held as follows:-

"After having heard both sides, this Court is of the considered view that the statutory primacy should be given to the Basic Tax Register, which is the statutory document prepared in terms of the provisions contained in Rule 4 of the Kerala Land Tax Rules, 1972 framed under the provisions of Sec.5 of the Kerala Land Tax Act, 1961.

7. Section 5 of the Kerala Land Tax Act deals with 'Charge of land tax' and Sub-Sec.2 thereof mandates that basic tax charged on any land shall be paid by the land holder concerned etc,. "Land Holder" has been defined in Sec.3(3) of the Land Tax Act as follows:

"(3) "land holder" means,-

(a) in relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964), such cultivating tenant;

(b) in relation to any land in the possession of a kanam tenant as defined in the Kanam Tenancy Act, 1955 (XXIV of 1955), such kanam tenant;

(c) in relation to any land which has not been surveyed and is not held by a cultivating tenant referred to in sub-clause (a), the proprietor of such land;

(d) in relation to any other land, the registered holder for the time being of such land, and includes his legal representatives and assigns and any person who under any law for the time being in force is liable for the payment of public revenue due in respect of the land held by him."

WP(C).No.34028 OF 2023

8. Section 4 of the Act further mandates that the arrangement under the Kerala Land Tax Act, 1961 shall be general revenue settlement and notwithstanding anything contained in any enactment, grant, deed or other transaction, the arrangement made herein for the levy of the basic tax shall be deemed inter alia to be general revenue settlement of the State. Section 20 of the said Act confers power on the State Government to frame rules. In exercise of the power under Sec. 20 of the abovesaid Act, the Kerala Land Tax Rules, 1972 has been statutorily framed. Rule 4 of the Kerala Land Tax Rules, 1972, mandates that a register called Basic Tax Register shall be maintained in all Village and Taluk Offices. By virtue of combined effect of Secs.3 (3), 4 and 5 etc., the land tax is to be collected from the land holder concerned as defined in Sec.3(3)

(a). For that purpose, Basic Tax Register has to be maintained in all Village and Taluk Offices as per Rule 4. By virtue of the non obstante clause in Sec.4 of the Act, notwithstanding anything in any other enactment, grant, deed or other transaction the arrangement made as per the said Kerala Land Tax Act for the levy of basic tax shall be deemed inter alia to be general revenue settlement of the entire State. Different tax rates are prescribed for garden land and paddy land etc,. The name of the land holder and the nature of the property are thereafter duly recorded in the BTR, after such due process. Therefore the Basic Tax Register as envisaged in Rule 4 of the Kerala Land Tax Rules, 1972 is a vital statutory document and hence the entries in such a vital statutory document like the BTR cannot be simply ignored by the competent revenue officials concerned, so as to proceed adversely as against the parties like the petitioners merely on the ground that the old settlement register WP(C).No.34028 OF 2023

shows the description of the property otherwise. The said approach of the respondents is against the scheme of the statutes as framed in the Kerala Land Tax Act, 1961 and the Kerala Land Tax Rules, 1972.

9. That apart, it is the admitted case of the respondents that it is after due survey and inspection of the subject property that the land was earlier classified as 'garden land' or 'purayidam', which is clearly recorded in the Basic Tax Register in relation to the subject property. Therefore, the said description in the vital statutory document like BTR as per Rule 4 cannot be disturbed merely because of the respondents find subsequently that there are some old records like the old settlement register, which show the description of the property otherwise. The said approach of the respondents is to say the least arbitrary and against the statutory provisions and therefore it is illegal and ultra vires."

4. Since it is not disputed that the property of

the petitioner is recorded in the Basic Tax Register as

'purayidam', the said description in the vital

statutory document cannot be disturbed or ignored

on the basis of the 'A' Register/Settlement Register

which shows the description of the property

otherwise.

5. Accordingly, Ext.P5 stop memo and any WP(C).No.34028 OF 2023

consequential proceedings issued pursuant thereto

are set aside.

The writ petition is disposed of.

Sd/-

MURALI PURUSHOTHAMAN JUDGE

SPR WP(C).No.34028 OF 2023

APPENDIX

PETITIONER'S EXHIBITS:-

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.2299/2018 DATED 11.5.2018 OF S.R.O., MANJERI EXECUTED IN THE NAME OF MUHAMMED AND YASIN ALI.

EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO.A3- BA(17232)/2019 DATED 8.8.2018 ISSUED BY THE PULPATTA GRAMA PANCHAYAT TO THE PETITIONER AND OTHERS.

EXHIBIT P3 TRUE COPY OF THE FIRE SAFETY CLEARANCE FOR SITE DATED 27.12.2018 ISSUED BY THE REGIONAL FIRE OFFICER, FIRE AND RESCUE SERVICES, PALAKKAD TO THE PETITIONER AND OTHERS.

EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 26.4.2018 ISSUED BY THE VILLAGE OFFICER, PULPATTA VILLAGE.

EXHIBIT P5 TRUE COPY OF THE STOP MEMO DATED 28.2.2022 FROM THE VILLAGE OFFICER, PULPATTA TO THE PETITIONER AND OTHERS. EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 3.3.2022 SUBMITTED BY THE PETITIONER TO THE AGRICULTURE OFFICER, KRISHI BHAVAN, PULPATTA.

EXHIBIT P7 TRUE COPY OF THE REPLY DATED 5.3.2022 ISSUED BY THE AGRICULTURE OFFICER, KRISHI BHAVAN, PULPATTA TO THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE LETTER DATED 3.3.2022 SENT BY THE PETITIONER TO STATE PUBLIC INFORMATION OFFICER, VILLAGE OFFICE, PULPATTA UNDER RIGHT TO INFORMATION ACT. EXHIBIT P9 TRUE COPY OF THE LETTER DATED 23.3.2022 ISSUED BY STATE PUBLIC INFORMATION OFFICER, VILLAGE OFFICE, PULPATTA TO THE PETITIONER.

EXHIBIT P10 TRUE COPY OF THE COMPLAINT FILED BY MUHAMMED ASHRAF, CPI(M) BRANCH SECRETARY DATED 28.2.2022 BEFORE THE VILLAGE OFFICER, PULPATTA.

WP(C).No.34028 OF 2023

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 13.9.2023 SENT BY THE PETITIONER TO THE 3RD RESPONDENT VILLAGE OFFICER.

EXHIBIT P12 TRUE COPY OF THE RELEVANT PAGE OF BASIC TAX REGISTER ISSUED FROM VILLAGE OFFICE, PULPATTA IN RESPECT OF PROPERTY IN SURVEY NO.294/6.

EXHIBIT P13 TRUE COPY OF THE RECENT LAND TAX RECEIPT FOR 2023-2024 DATED 2.5.2023 ISSUED TO THE PETITIONER FROM VILLAGE OFFICE, PULPATTA.

EXHIBIT P14 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 17.5.2023 ISSUED FROM THE VILLAGE OFFICE, PULPATTA TO PETITIONER AND OTHERS.

EXHIBIT P15 TRUE COPY OF THE DOCUMENT NO.3570/1997 DATED 27.9.1997 OF S.R.O., MANJERI.

RESPONDENTS EXHIBITS: NIL.