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2018 DIGILAW 1032 (KER)

Nisamudheen v. State of Kerala

2018-12-11

ALEXANDER THOMAS

body2018
JUDGMENT : 1. The prayers in the above Writ Petition (Civil) are as follows. "i. Issue a writ of mandamus or such other writ, direction or order compelling the 4th respondent to issue tax receipt without entering the status of the land as shown in the BTR; ii. Issue such other writ, direction or order as is deemed just and necessary in the facts, features and circumstances of the case." 2. Heard Smt. K.P. Santhi, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the official respondents 1 to 4. 3. The petitioner claims to be the owner having title, possession and enjoyment of properties having extent of 38.85 ares of land in Sy. Nos. 200/1, 2, 3, 4, 5, 6, 7, 8 & 13, and 6.33 ares of land in Sy.Nos.191/8/2, 191/14 & 191/8 of Thrikkakara North Village, Kanayannur Taluk, Ernakulam Revenue District as per Ext.P-1 registered sale deed No.2094/2018 of SRO, Edapally and Ext.P-2 sale deed No.2095/2018 of SRO, Edapally, respectively. According to the petitioner, the lands in question has been classified as converted land prior to 2008 as evident from the entry in that regard in the draft data bank published in accordance with the provisions contained in the Kerala Conservation of Paddy and Wet Lands Act, 2008. The petitioner had submitted applications for effective mutation of said properties and had submitted Ext.P-3 application dated 5.9.2018 for granting mutation in respect of the above said properties as per the provisions contained in the Transfer of Registry Rules, 1966. The properties has been mutated in favour of the petitioner and land tax has also been accepted from the petitioner and Ext.P-4 land tax receipt dated 22.10.2018 has also been issued by the 4th respondent Village Officer for the above said properties. It is mentioned in the remarks column therein that the land in question is (paddy-land). The limited contention raised by the petitioner is that the form for land tax receipt as shown in Ext.P-4 is not prescribed either in the Land Tax Rules, 1972 or the Transfer of Registry Rules, 1966. It is mentioned in the remarks column therein that the land in question is (paddy-land). The limited contention raised by the petitioner is that the form for land tax receipt as shown in Ext.P-4 is not prescribed either in the Land Tax Rules, 1972 or the Transfer of Registry Rules, 1966. Accordingly the petitioner would content that the competent revenue officials like the Tahsildar/Village Officer etc have no jurisdiction to prescribe a proforma as conceived by them in order to show the nature of the land and that this Court may direct that the action in that regard is without authority of law and this Court may direct that the entry made in Ext.P-4 describing the nature of the land whether it is dry-land, wetland etc should not be stated etc. 4. Kerala Land Tax Rules, 1972 has been framed under the enabling provisions contained in Sec.20 of the Kerala Land Tax Act, 1961. Rule 4 of the Kerala Land Tax Act, 1972 envisages that a register called the Basic Tax Register (BTR) shall be maintained in all the Village and Taluk Offices. Sec.6 of the Kerala Land Tax Act, 1961 deals with rate of basic tax and criteria for fixation of rate of basic tax. Sec.6(2) mandates that notwithstanding anything contained in sub-section(1) of Sec.6, where land-holder or other person liable to pay basic tax proves to the satisfaction of the prescribed authority that the gross income from any land was less than twenty four rupees and seventy paise per are per annum, the basic tax payable on such land shall be at the rate fixed by the prescribed authority calculated at one-fifth of the gross income from such land, etc. Sub-section (3) of Sec. 6 stipulates that an application for fixation of the rate of basic tax under sub-section (2) of Sec.6 shall be in the form specified by the Government by notification in the Gazette and shall be made to the prescribed authority within the prescribed time. Sec.6A deals with assessment of basic tax. Subsection 1 of Sec.6A stipulates that basic tax payable in respect of any land shall be assessed in the manner provided in sub-section (2) to (4) of that section. Sub-section (2) of Sec.6A deals with the issuance of provisional notice on demand in the prescribed proforma and further steps thereon. Sec.6A deals with assessment of basic tax. Subsection 1 of Sec.6A stipulates that basic tax payable in respect of any land shall be assessed in the manner provided in sub-section (2) to (4) of that section. Sub-section (2) of Sec.6A deals with the issuance of provisional notice on demand in the prescribed proforma and further steps thereon. The 2nd proviso to Sec.6(2) stipulates that the Government may, having regard to the potential productivity of any land used principally for growing_ (a) coconut, arecanut, pepper, tea, coffee, rubber, cardamom or cahsew; or (b) any other special crop plant or tree that may be specified by the Government by notification in the Gazette, levey and collect basic tax per are at the rate mentioned therein on such land, notwithstanding the fact that such crops, plants or trees had not begun to yield or bear and that for the time being no income was made from that land or that the income made was less than the prescribed amount mentioned therein. Sub-section (3) of Sec.6A stipulates that any person aggrieved by any of the particulars contained in the provisional notice on demand or the rate or amount of basic tax specified therein may, within the period specified therein, prefer, his objections in writing to the prescribed authority, who shall then conduct due enquiries and after giving the objector and any other person whom it considers necessary, an opportunity of being heard, may pass orders on the said objections. Sub-section (4) of Sec.6A stipulates that the prescribed authority shall prepare or cause to be prepared the final notice of demand in conformity with its orders under sub-section (3) and shall communicate such order and final notice of demand to the land holder concerned and any person liable to pay the basic tax in respect of the land. Sec.7 deals with the provisional assessment of basic tax in the case of un-surveyed lands. Sec.9 of the said Act deals with appeals. Sub-section (1) of Sec.9 stipulates that any person aggrieved by the orders of the prescribed authority under sub-section(2) of Sec.6 or under sub-section (3) of Sec.6A or under sub-section(3) of Sec.7 may appeal to the Collector of the district in which the land is situated, and if the land is situated in more than one district, the Collector of the district in which the major portion of the land is situated. Sec.10 deals with reference to District Court. Sec.11 deals with the power of revision conferred with the Board of Revenue. Rule 5(i) of the Kerala Land Tax Rules, 1972 stipulates that the application for fixation of the rate of basic tax under Sec. 6(2) shall be presented by the land holder or any other person liable to pay basic tax to the prescribed authority having jurisdiction over the Taluk in which the land is situated, etc. Rule 5(ii) thereof mentions that application for fixation of the rate of basic tax under Sec.6(2) shall be in Form A. Rule 6 thereof prescribes about the modalities of dealing with application under Rule 5, etc. Rule 8 of the Kerala Land Tax Rules, 1972 reads as follows. 8. (i) stipulates that the prescribed authority shall determine the gross income from the land whether actually cultivated or not, if it is cultivable. For this purpose he may ascertain the income derived, if any, from similar neighbouring lands and may take evidence from persons who are likely to be acquainted with the nature and cultivation of such lands, including the applicant. (ii) After determining the gross income in kind the money value of the same shall be calculated as laid down in Expalanation 3 to sub-section (2) of Sec.6 with reference to the average of the market rates and records, if any, available with the prescribed authority for the respective commodities for the six years immediately preceding the date of application for fixation of tax. (iii) The prescribed authority shall, before passing order, give notice to the land holder concerned any other persons liable to pay the basic tax to show cause against the rate of amount of basic tax proposed to be fixed in respect of land. (iv) The prescribed authority shall after considering the enquiry report and the evidence, if any, adduced by the applicant and if necessary after hearing the applicant also, determine the gross income from the land and fix the rate of basic tax payable on such land. The proceedings of the prescribed authority shall state the basis for determination of the gross income from any land, as also the money value arrived at, for several kinds of produce and a copy of the proceedings shall be communicated to the landholder or any other person concerned liable to pay the Tax. 5. The proceedings of the prescribed authority shall state the basis for determination of the gross income from any land, as also the money value arrived at, for several kinds of produce and a copy of the proceedings shall be communicated to the landholder or any other person concerned liable to pay the Tax. 5. From a cumulative impact of the above said provisions in the Act and the Rules, would make it clear that rate of basic tax and acceptance of basic tax etc may have to be determined on relevant considerations like the nature of the cultivation conducted in the land and nature of the land would also be relevant. For that purpose the competent revenue officials could make entry in the basic tax register envisaged in Rule 4 thereof about the nature of the land as to whether it is paddy land/dry land/garden land etc. It cannot be said that such action is totally irrelevant or not germane for the purposes conceived in the Kerala Land Tax Act and the Rules framed there under. Assuming that no specific prescriptions have been made by the Rule making authority as per the provisions contained in the Kerala Land Tax Rules, 1972 and the Transfer of Registry Rules, 1966, it does not mean that the functionaries who are responsible for the administration and enforcement of the rules, does not have any inherent power to envisage and stipulate about the format of the receipt in the matter of acceptance of basic land tax. Hence this Court is of the view, that even if it is assumed that no specific proforma of the land tax receipt has been prescribed either in the Land Tax Rules or in the Transfer of Registry Rules, it will not lead to a situation that the respondents are incompetent to mention the nature of the land in the land tax receipt. The basic contention of the petitioner is that no specific proforma has been prescribed either under the Land Tax Rules or under the Transfer of Registry Rules in the matter of the land tax receipt to be issued. The basic contention of the petitioner is that no specific proforma has been prescribed either under the Land Tax Rules or under the Transfer of Registry Rules in the matter of the land tax receipt to be issued. If the said contention of the petitioner is accepted and taken to the logical conclusion then it even lead to the situation that the authorities concerned cannot issue any land tax receipts, as they do not have any power to even stipulate the proforma in its receipt to be issued, in the absence of prescriptions in the Rule. That cannot be the manner in which the provisions of Rules should be reasonably interpreted. So the upshot of the above discussion is that even it is assumed that no specific proforma is prescribed under the above said Rules in the matter of land tax receipts, it does not mean that the authorities concerned are denuded of their competence even in exercise of their inherent & ancillary powers to stipulate the proforma of the land tax receipts. Hence the above said contention of the petitioner cannot be countenanced and the same will stand overruled. 6. However it is made clear that in case the petitioner has any grievance about the description of the land as paddy land in Sl.No.4 of Ext.P-4, he will be at liberty to ventilate his grievances in this regard in the manner known to law. With these observations and directions and with the above said liberty, the above Writ Petition (Civil) will stand finally disposed of.