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2009 DIGILAW 208 (KER)

Sreedevi Amma v. District Collector

2009-02-27

C.K.ABDUL REHIM

body2009
Judgment : The challenge in the Writ Petition is against Ext.P2, appellate order of the District Collector, issued under S.9 of the Kerala Land Tax Act, 1961 (hereinafter referred as the Act for short) and the consequential order of the Tahsildar, Ext.P3. According to the petitioners, the property which is subject matter of the impugned orders situates in Melathur village and belonged to their deceased father Sri. N.A. Ravi Varman Unni Mooppil Eradi, and he was the Manager of the School situated in the said property. A society by name "MelathurVidyabhyasa Society" was formed and the school was put in possession and management of the society. The 3rd respondent is the present president of the above said society. It is the admitted case of both the petitioners and the 3rd respondent that there exist disputes with respect to ownership of the property and management of the school. It is further admitted that civil suits were pending with respect to partition of the property among the legal heirs of late Sri, N.A. Ravi Varman Unni Mooppil Eradi and with respect to title of the property between the petitioners and the society. For the purpose of deciding the issue involved in this Writ Petition, it is not necessary to go into details of those disputes pending in civil litigations. 2. The issue involved herein is the dispute regarding entitlement for payment of basic tax with respect to the above said property. The contention of the petitioners is that, after death of their predecessor in the year 1979, the 1st petitioner as legal heir, was paying basic tax with respect to the property. Ext.P1 series basic tax receipts, pertaining to various years in between 1978-1979 and 2000-2001 are produced in support of the above contention. On the contrary, the 3rd respondents contention is that, the society was paying basic tax when they were managing the school. The dispute arose when the Village Officer refused to accept basic tax from Sri. P.K. Vasudeva Panicker, the former President of the society, assigning the reason that civil suits with respect to the question of title on the property, are pending adjudication. 3. From the records it is revealed that, Sri. P.K. Vasudeva Panicker approached the District Collector during the year 2001 and the District Collector vide his proceedings No. B7-6737/01 dated 15.2001 directed the Tahsildar to take a decision on the dispute. 3. From the records it is revealed that, Sri. P.K. Vasudeva Panicker approached the District Collector during the year 2001 and the District Collector vide his proceedings No. B7-6737/01 dated 15.2001 directed the Tahsildar to take a decision on the dispute. The Tahsildar issued proceedings No. B1-2083/01 dated 16.2001, by which it was decided, not to accept basic tax from both parties, in view of pendency of the Civil Suits. It is evident that Sri. P.K. Vasudeva Panicker filed an appeal before the District Collector under S.9 of the Act, and Ext.P2 is the order passed thereon. By virtue of Ext.P2 the matter was remanded back to the Tahsildar with specific directions to accept tax from the President of the society, if it is evident that land tax was being accepted from the society till 1990-91, and if the civil courts have not issued any stay or injunction against accepting basic tax from the appellant. Ext.P3 is the consequential order issued by the Tahsildar. In view of the specific directions in the order of remand, the Tahsildar directed the Village Officer to accept basic tax from the society, subject to final decision in the civil suits pending. 4. The main attack against Ext.P2 and P3 is that, the appeal was filed without impleading the petitioners as parties and that the same was disposed of by the District Collector without notice to the petitioners, inspite of the fact that the appellant Sri. P.K. Vasudeva Panicker died during pendency of the appeal. It is also contented that there was no notice to the petitioners even in the consequential proceedings before the Tahsildar, which culminated in Ext.P3. Nothing is mentioned in Exts.P2 and P3 to show that notice was issued to the petitioners, or they were heard in the proceedings. 5. Ona perusal of the counter affidavit filed by the 3rd respondent, it is noticed that the above contention of the petitioner regarding lack of notice in the proceedings is not disputed. The main contentions are regarding the rights of the society over the property and the school, and the merits of the Civil Suits. It is not necessary for this court to look into those controversies because no decision is proposed to be taken on those issues. The main contentions are regarding the rights of the society over the property and the school, and the merits of the Civil Suits. It is not necessary for this court to look into those controversies because no decision is proposed to be taken on those issues. Even though Ext.R3 (J) series basic tax Receipts are produced along with counter affidavit, it is evident that those are payments made after Exts.P2 & P3 orders. 6. The 1st respondent had filed a counter affidavit. In para.9, it is stated that, "It is submitted that both the petitioners and the appellant were heard." Further in para.11 it is stated that, "The petitioners and the counter petitioners were heard and orders passed thereupon." On the basis of the specific contentions of the petitioner supported by the affidavit, and on the basis of the lack of specific denial by the 3rd respondent, I am inclined to hold that the above contentions of the 1st respondent is one made without support of the records, and against true facts. 7. Therefore I have no hesitation to hold that, Exts.P2 and P3 are vitiated by violation of principles of natural justice. Exts.P2 and P3 are statutory proceedings of quasi-judicial nature, issued in discharge of powers vested under the provisions of the Act. It was obligatory on the part of the authorities to issue notice to all parties affected by such proceedings and to afford adequate opportunity for them to contest. Hence, Exts.P2 and P3 are unsustainable in the eye of law and they are liable to be quashed. 8. On a perusal of Ext.P2 it is noticed that the District Collector had remanded the matter with the following directions: "In the above circumstances, the appeal is hereby allowed and the Tahsildar is directed to accept the basic tax of the land in question from the petitioner President Melathur, Vidhyabhyasa Society, after ensuring the following aspects:- 1. That the basic tax of the property in question upto 1990-1991 was accepted from the petitioner, President, Melathur Vidhyabyasa Society. 2. That there are no stay orders or injunction orders from a court of law or other competent authorities against the acceptance of basic tax from the petitioner society." The counsel for the petitioner seriously disputes these findings as one having no support of law. 2. That there are no stay orders or injunction orders from a court of law or other competent authorities against the acceptance of basic tax from the petitioner society." The counsel for the petitioner seriously disputes these findings as one having no support of law. Ext.P2 is an order passed by the appellate authority on a statutory appeal filed under S.9 of the Act. The basic question which has to be decided is entitlement for payment of basic tax. S.5 of the Act deals with levy and collection of basic tax, sub-s.(2) of S. 5 reads as follows.-- "(2)The basic tax charged on any land shall be paid by the land holder of that land before such date as may be prescribed: Provided that where - (i) the landholder in respect of any land is a person referred to in sub-cl. (c) or sub-cl.(d) of cl.(3) of S.3 ; (ii) such land is in the possession of a tenant or other person not being the landholder; and (iii) the income obtained by the landholder from that land is less than the basic tax payable thereon, the excess of the basic tax over such income shall be paid by the tenant or other persons in possession.” The above quoted provision clearly indicates that basic tax charged of any land is liable to be paid by the landholder of that land. The term `landholder is defined under sub-s.(3) of S.3 of the Act which reads as follows:- (3) "landholder" 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-cl.(a) the proprietor of such land; (d) in relation to any other land, the registered holder for the time being of such land. 10. On a combined reading of S.5(2) and S.3(3) of the Act it is clear that the liability for payment or rather the entitlement for payment of basic tax is upon the landholder and that the landholder in normal case is the registered holder, for the time being of such land. 10. On a combined reading of S.5(2) and S.3(3) of the Act it is clear that the liability for payment or rather the entitlement for payment of basic tax is upon the landholder and that the landholder in normal case is the registered holder, for the time being of such land. Apart from the registered holder the persons who comes within the definition of landholder is enumerated under sub-cls. (a), (b) and (c) of sub-s.(3) of S. 3. Further, the proviso to S.5(2) enumerates the conditions where persons other than the landholder became liable for payment of basic tax. 11. In Ext.P2the District Collector directed the Tahsildar to accept basic tax from the third respondent society, after ensuring as to whether the basic tax was accepted from them till 1990-91. The question which arises for consideration that whether any person other than those mentioned in S.5(2) of the Act is entitled for payment of basic tax, as a matter of right. It is clear and evident from the provisions of the Act that no right or entitlement will be conferred on any person for continued payment of basic tax, merely because he was paying basic tax with respect to the property for certain periods, if there arose a dispute. The question regarding entitlement/liability for payment of basic tax is upon persons who are enumerated in S.5(2) read with S.3(3) of the Act. Therefore, if there is any dispute between two rival parties claiming entitlement for payment of basic tax, under S.3(7) the "prescribed authority", need to take a decision based on the provisions of the Act. Each parties claim for such entitlement needs adjudication with due consideration of the provisions of the Act. The mere fact that any of the disputing parties had paid basic tax for any particular period, cannot be taken as a fact conferring right upon such party for continued payment of basic tax. Of course, the question regarding title, which if ultimately decided by a competent civil court, may be having a bearing on the question as to who is the registered holder of the land. Therefore in this case the decision will have to be taken subject to the outcome of civil litigations. Of course, the question regarding title, which if ultimately decided by a competent civil court, may be having a bearing on the question as to who is the registered holder of the land. Therefore in this case the decision will have to be taken subject to the outcome of civil litigations. But pending disposal of the civil suits, the rival claims of the parties with respect to right or entitlement for payment of basic tax need be decided, based on the provisions of the Act. 12. In the result Exts.P2 and P3 are quashed. The District Collector is directed to take fresh decision on the appeal preferred by the former president of the society, considering the same as filed by the 3rd respondent, after impeading the petitioners as respondents/counter petitioners therein, and after affording an opportunity of hearing to the petitioners. The District Collector while taking a decision shall make necessary advertence to the provisions of the Kerala Land Tax Act, 1961, especially to the provisions quoted herein above, and will decide the question on the entitlement for payment of land tax, subject to final decision of the competent Civil Court with respect to title of the property. A decision in this regard may be taken at the earliest, at any rate within three months from the date of receipt of a copy of this judgment. The Original Petition is disposed of as above.