MOHAMMED PULLAN v. STATE OF KERALA

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 3

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 4 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 5

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 6 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 7 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 8 APPENDIX PETITIONER’ S EXHIBITS :- EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 EXHIBIT P10 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. 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. 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. TRUE COPY OF THE CERTIFICATE DATED 26.4.2018 ISSUED BY THE VILLAGE OFFICER, PULPATTA VILLAGE. TRUE COPY OF THE STOP MEMO DATED 28.2.2022 FROM THE VILLAGE OFFICER, PULPATTA TO THE PETITIONER AND OTHERS. TRUE COPY OF THE APPLICATION DATED 3.3.2022 SUBMITTED BY THE PETITIONER TO THE AGRICULTURE OFFICER, KRISHI BHAVAN, PULPATTA. TRUE COPY OF THE REPLY DATED 5.3.2022 ISSUED BY THE AGRICULTURE OFFICER, KRISHI BHAVAN, PULPATTA TO THE PETITIONER. 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. TRUE COPY OF THE LETTER DATED 23.3.2022 ISSUED BY STATE PUBLIC INFORMATION OFFICER, VILLAGE OFFICE, PULPATTA TO THE PETITIONER. 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 9 EXHIBIT P11 EXHIBIT P12 EXHIBIT P13 EXHIBIT P14 EXHIBIT P15 TRUE COPY OF THE LETTER DATED 13.9.2023 SENT BY THE PETITIONER TO THE 3RD RESPONDENT VILLAGE OFFICER. TRUE COPY OF THE RELEVANT PAGE OF BASIC TAX REGISTER ISSUED FROM VILLAGE OFFICE, PULPATTA IN RESPECT OF PROPERTY IN SURVEY NO.294/6. TRUE COPY OF THE RECENT LAND TAX RECEIPT FOR 2023-2024 DATED 2.5.2023 ISSUED TO THE PETITIONER FROM VILLAGE OFFICE, PULPATTA. TRUE COPY OF THE POSSESSION CERTIFICATE DATED 17.5.2023 ISSUED FROM THE VILLAGE OFFICE, PULPATTA TO PETITIONER AND OTHERS. TRUE COPY OF THE DOCUMENT NO.3570/1997 DATED 27.9.1997 OF S.R.O., MANJERI. RESPONDENTS EXHIBITS: NIL.