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2020 DIGILAW 1032 (KER)

Mohammed Ashraf v. Rani P Eldho

2020-12-03

ALEXANDER THOMAS

body2020
JUDGMENT : The aforementioned Contempt of Court Case has been filed alleging noncompliance of the directions issued by this Court in Annexure A1 judgment dated 25.02.2020 in WP(C) No.5446 of 2020 filed by the petitioner herein. 2. Heard Sri.Peeyus A Kottam, learned counsel appearing for the petitioner/writ petitioner and Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) appearing for the respondent, Tahsildar/R4 in the WP(C). 3. This Court as per Annexure A1 judgment dated 25.02.2020 in WP(C) No.5446 of 2020 filed by the petitioner herein had inter alia ordered that after orders are passed by the respondent RDO on the application filed under Rule 6(2) of the KLU order, by the writ petitioner, securing statutory permission for change of user of the subject property, then the petitioner is entitled to have his request considered under Section 6A of the Kerala Land Tax Act before the Tahsildar seeking for reassessment of the subject property and change of classification of the nature of land in the Basic Tax Register (BTR), by making additional entries in the BTR to show the changed nature of the land, in the light of the dictum laid down by the Division Bench of this Court in LLMC, Kizhakkambalam Grama Panchayath and others v. Mariumma and another [ 2015 (2) KLT 516 (DB)]. It appears that the RDO concerned had passed the proceedings dated 14.02.2020, allowing the request of the petitioner for change of user of land but imposing an order of condition that he should necessarily pay the amounts as conceived as per Rule 27A(3) of State Act 28 of 2008 read with Rule 12 (9) of the Rules framed thereunder as a condition precedent for getting the benefit of change of user of land. The said proceedings dated 14.02.2020 issued by the RDO to the limited extent it places the abovesaid onerous condition was later separately challenged by the petitioner by filing WP(C) No.10382 of 2020 before this Court. The said proceedings dated 14.02.2020 issued by the RDO to the limited extent it places the abovesaid onerous condition was later separately challenged by the petitioner by filing WP(C) No.10382 of 2020 before this Court. This Court as per judgment dated 27.5.2020 had disposed of the said W.P.(C).No.10382/2020 holding that there is no dispute that the subject property has been converted prior to the coming into force of the 2008 Act and further that the petitioner has also filed requisite application under Rule 6(2) of the KLU order before the cut off date of 30.12.2007 (the date of coming into force of the amended provisions of the 2008 Act) and therefore, it is absolutely illegal and ultra vires that the RDO who has placed an onerous condition that the petitioner should necessarily pay the amounts as conceived as per Section 27A(3) and the Rules framed thereunder. This Court has so ordered that it has been well settled that an application for change of user of land filed in such cases before the cut off date can be considered only in terms of Rule 6(2) of the KLU order. Only those applications for change of user of land in such cases filed on or after 30.12.2017 (the date of coming into force of the amended provisions of the 2008 Act) that could be considered in terms of Section 27A and the Rules framed thereunder, in view of the specific legislative mandate contained in Section 30 of the said Act. Accordingly, this Court had quashed the said conditions to pay the amounts under Section 27A(3) and the Rules as imposed in the said proceedings dated 14.02.2020 [Ext.P8 in W.P. (C).No.10382 of 2020] and had directed the RDO to pass orders in the matter without any such condition. There is no dispute that thereafter the RDO has only complied with the directions issued by this Court in the judgment dated 27.05.2020 in W.P(C).No.10382/2020 by passing proceedings dated 03.09.2020 allowing the request of the petitioner for statutory permission under Rule 6(2) of the KLU order without imposing any such conditions. 4. There is no dispute that thereafter the RDO has only complied with the directions issued by this Court in the judgment dated 27.05.2020 in W.P(C).No.10382/2020 by passing proceedings dated 03.09.2020 allowing the request of the petitioner for statutory permission under Rule 6(2) of the KLU order without imposing any such conditions. 4. Upon receipt of the said proceedings dated 03.09.2020 issued by the RDO granting unconditional statutory permission, the petitioner had submitted Annexure A3 application dated 09.09.2020 along with Form A before the respondent Tahsildar concerned seeking for consequent orders of reassessment of the subject property under Section 6(A) of the Kerala Land Tax Act, in the light of the dictum laid down by this Court in a series of cases as in Mariumma’s case (supra). At that stage the respondent Tahsildar was fully obliged to have complied with the directions issued by this Court in the instant Annexure A1 judgment dated 25.02.2020 in WP(C) No.5446 of 2020. There is no dispute that Annexure A1 judgment has become final and conclusive and no review or appeal has been filed thereto. 5. It appears from the affidavit dated 30.11.2020 filed by none other than the respondent Tahsildar that at that stage she had sent Annexure R1(c) letter dated 13.10.2020 requesting the RDO to file Writ Appeal as against the abovesaid judgment dated 27.05.2020 rendered by this Court in W.P.(C).No.10382 of 2020, on the ground that the Tahsildar concerned has not been made a party in the said W.P.(C).No.10382 of 2020. Further that she has also submitted applications before the RDO in Annexure R1(c) letter. Now the excuse put forward by the respondent Tahsildar is that it is only on account of the stand taken by her in Annexure R1(c) that the delay has occurred. On being queried about the stand of the learned Special Government Pleader (Revenue), it is fairly submitted by him that in W.P. (C).No.13082 of 2020, the Tahsildar is an unnecessary party. On being queried about the stand of the learned Special Government Pleader (Revenue), it is fairly submitted by him that in W.P. (C).No.13082 of 2020, the Tahsildar is an unnecessary party. Therefore, this Court is totally at a loss and cannot comprehend as to how any reasonable prudent person instructed on facts and law and that too a responsible officer of the Revenue Department in the rank of Tahsildar could have taken the stand that she is not in a position to comply with Annexure A1 judgment which is on the consequential issue of reassessment of the subject property under Section 6A of the Kerala Land Tax Act, as she has requested the RDO to file Writ Appeal as against the judgment dated 27.05.2020 in W.P.(C).No.10382 of 2020. The respondent Tahsildar does not have any dispute that, as a matter of fact the RDO has in fact passed proceedings dated 03.09.2020 under Rule 6(2) of the KLU order granting statutory permission to the petitioner for change of user of the land of the subject property in terms of Rule 6(2) of the KLU order. Therefore, any person, including an officer, who is instructed on the basic facts and legal norms in such a case, has only to take action to ascertain as to whether the property covered by Section 6A application is the same or part of the property covered by the proceedings issued by the RDO under Rule 6(2) of the KLU order. If it is factually found that the subject property covered by Section 6A application is the same or part of the property covered by the proceedings issued by the RDO in granting statutory permission under Rule 6(2) of the KLU order, then only the one course of action that is available to the Tahsildar is to subject the property for reassessment under Section 6A of the Kerala Land Tax Act so as to effect additional BTR entries to correctly show the changed nature of land as garden land/purayidom instead of the earlier BTR entries as nilam/paddy land. Thereafter the Village Officer will have to carry out actual corrections in the BTR to correctly reflect the change in nature of the land as purayidom. This is the only simple and elementary procedure to be followed in this case which is very well known to the officer of the rank of Tahsildars and Village Officers. Thereafter the Village Officer will have to carry out actual corrections in the BTR to correctly reflect the change in nature of the land as purayidom. This is the only simple and elementary procedure to be followed in this case which is very well known to the officer of the rank of Tahsildars and Village Officers. That apart it is the statutory obligation and duty of Revenue officers like Tahsildars and Village Officers to ensure that the proper land tax is collected from the landholder in respect of the subject property concerned. It is also well known that going by the rate of tax fixed, the land tax which is applicable in respect of the paddy land/nilam is lesser than that fixed for purayidom/garden land. Basic Tax Register is the statutory document which is mandatorily to be kept in terms of Rule 4 of the Kerala Land Tax Rules framed under the Kerala Land Tax Act, 1961. Since the Revenue officers of Tahsildar and Village Officer have the statutory obligation to ensure that proper land tax is collected, if BTR is not corrected, even after statutory permission to change of user of land, the Tahsildar and Village Officer will only collect land tax at the lower rate meant for nilam/paddy land, whereas the said Revenue officers were statutorily obliged in terms of the mandate contained in Section 5 of the Kerala Land Tax Act and Rules framed thereunder to have collected the higher tax due from the said land as it is purayidom/garden land. Hence, if BTR corrections in terms of Section 6A for reassessment proceedings are not effectuated by the Tahsildar, it will directly lead to loss of revenue to the State. Unless the Tahsildar passes orders of reassessment of the subject property in terms of Section 6A of the Kerala Land Tax Act the Village Officer is helpless and he cannot carry out any consequential corrections in the BTR. If such rigid and dogmatic stand is taken, it amounts to taking an action in derogation of the statutory duties and responsibilities fasten on Revenue officials like Tahsildars and Village Officers in terms of Section 5 of the Kerala Land Tax Act and the other relevant provisions in the Act and Rules framed thereunder. If such rigid and dogmatic stand is taken, it amounts to taking an action in derogation of the statutory duties and responsibilities fasten on Revenue officials like Tahsildars and Village Officers in terms of Section 5 of the Kerala Land Tax Act and the other relevant provisions in the Act and Rules framed thereunder. Therefore, the very stand taken by the respondent Tahsildar in having initially taken the stand in Annexure R1(b) is not complying with the directions in Annexure A1 judgment was plainly illegal and wrong and would go against the interest of revenue collection. 6. That apart, it is well known that an officer of the rank of Tahsildar is inferior in rank that of a Revenue Divisional Officer. It is really not possible for this Court to understand as to how an officer of the rank of Tahsildar would straight away write a letter as in Annexure R(1)b, addressed to the RDO for filing of Writ Appeal in a judgment in which the Tahsildar is not concerned on the ground that the Tahsildar is not made a party. The approach in taking the stand that the appeal is to be filed as against another judgment, W.P.(C).No.10382 of 2020 is plainly wrong for reasons more than one. Firstly, W.P.(C).No.10382 of 2020, has already been complied with by the RDO by then on 03.09.2020, whereas Annexure R1(c) letter has been sent by the respondent Tahsildar is having the date 30.09.2020 and despatched from thereon 23.10.2020. Annexure R1(c) has been issued and despatched on 23.10.2020, wherein the RDO has already issued proceedings dated 03.09.2020. Therefore, by the abovesaid stand taken by the respondent Tahsildar in Anx. R1(c) would amount to challenging the competency and wisdom of her superior RDO in having already complied with the directions issued by this Court in judgment in W.P.(C).No.10382 of 2020. There is a well laid down procedure for examining the issue as to whether appeal is to be filed in such matters. R1(c) would amount to challenging the competency and wisdom of her superior RDO in having already complied with the directions issued by this Court in judgment in W.P.(C).No.10382 of 2020. There is a well laid down procedure for examining the issue as to whether appeal is to be filed in such matters. In such cases where the officer seriously thinks based on relevant considerations that the direction and orders in the judgment are not legally correct, etc., then, the officer concerned has to put up the matter to the administrative superior and through such competent administrative superior has to address the office of the Advocate General so as to ensure that the Government Pleader concerned who has appeared for the State in the matter is approached to get his well-considered opinion about the scope of filing of such appeal. After following this procedure, the law officer like the Government Pleader will have to give opinion regarding the scope appeal which will have to be approved by the learned Advocate General or any senior officer authorized by the learned Advocate General. Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) submits that this is well laid down procedure which is even followed now. It is really not possible to understand to this Court that how this procedure can be bypassed by the respondent officer and that too in a matter in which she has no concern and in which her superior has already complied with the directions in the said judgment. Therefore, suffice to say the reasons stated in the affidavit filed by the respondent officer for the delay in complying with the directions issued by this Court in Annexure A1 judgment is not justifiable and cannot be countenanced. 7. Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) would submit on the basis of the pleadings in the affidavit dated 30.11.2020 filed by the respondent Tahsildar that now the respondent Tahsildar has passed R1(b) proceedings dated 24.11.2020 granting request of the petitioner for reassessment of the subject property and for additional entries in the BTR to show the changed nature of the land as purayidom/garden land instead of the earlier BTR entries as nilam/paddy land. Further that notice of final assessment and demand under Section 6A(4) of the Kerala Land Tax Act, 1961 in Form C and provisional notice of demand under Section 6A(2) and Section 7(3)(A) in Form B have also been issued as per Annexures R1(e) and R1(f) proceedings. Learned Special Government Pleader would also submit that the respondent officer has also forwarded Annexures R1(e) and R1(f) proceedings by post to the petitioner. Further, the Special Government Pleader (Revenue) would submit that now he is not in a position to really ascertain and submit as to whether the Village Officer has also carried out consequential action of actually carrying out the corrections in the BTR and to show the changed nature of land and for consequential issuance of the Land Tax Receipt showing such changed nature of land, etc., and that if those consequential formalities have not been done, it shall be ensured that the Village Officer concerned would also faithfully and expeditiously comply with the formalities, so that land tax will be accepted from the petitioner in respect of the subject property and land tax receipt issued thereon showing correctly the changed nature of land as purayidom/garden land. Further, Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) would submit that though the explanation offered by the respondent Tahsildar on the basis of the stand taken in Annexure R1(c) letter addressed to the RDO is not justifiable, this Court may take a lenient view and may close the Contempt of Court proceedings and that the respondent officer has placed her unconditional apology to this Court for the abovesaid action in her affidavit dated 30.11.2020 filed before this Court. Further, Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) would also submit that he has already given strict instructions and directions to respondent Tahsildar to ensure that case of similar nature are dealt with due care and caution so that the matters are decided legally and properly and also that in cases where judgments of courts have become final and conclusive, then it shall be her bounden duty to ensure faithful and expeditious compliance without any unnecessary excuses or without causing any delay or difficulties to the parties concerned, who approach her as citizens. 8. 8. Very many cases are coming to this Court of similar nature involving proceedings under Rule 6(2) of KLU order, Section 27A(1) of the Act etc., wherein consistently, competent revenue officials like District Collectors RDO, Tahsildar etc., are either not complying with those directions which has become final and conclusive for a very long time or would take the stand of passing orders in blatant violation of the directions issued by this Court in such judgments and also in flagrant derogation of the legal position settled by this Court in a cartload of cases in similar scenario. Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue) has also been appearing before this Court in many of such cases and this Court is convinced that the learned Special Government Pleader (Revenue) is taking a very sincere and committed stand to uphold rule of law despite various hurdles and difficulties faced from officers in such cases. The great sense of responsibility and commitment shown by the Special Government Pleader (Revenue) is to be commended and placed on record. In view of the abovesaid earnest submissions made by the learned Special Government Pleader (Revenue), this Court is inclined to be persuaded to accept his plea though initially this Court felt otherwise. 9. In view of the abovesaid aspects and taking note the sincere and committed approach made by the learned Special Government Pleader in very many cases of this nature, this Court would certainly accede to his plea. On being queried Sri.Peeyus A Kottam, learned counsel appearing for the petitioner, would also fairly submit that in view of the compliance with the directions in the judgment belatedly and in view of the abovesaid fair submissions made by Sri.K.J.Mohammed Anzar, learned Special Government Pleader (Revenue), this Court may not proceed with the Contempt of Court Case any further and may close it accordingly. The abovesaid fair submissions made by Sri.Peeyus A Kottam, learned counsel for the petitioner are also placed on record and are also deeply appreciated by this Court. 10. In the light of these aspects, this Court is of the view that the Contempt of Court Case need not be proceeded any further. The abovesaid fair submissions made by Sri.Peeyus A Kottam, learned counsel for the petitioner are also placed on record and are also deeply appreciated by this Court. 10. In the light of these aspects, this Court is of the view that the Contempt of Court Case need not be proceeded any further. However, the least that this Court would expect in such cases is that officers should realize that even in cases of this nature, they are meant to serve the people, who are the citizens and that precisely for this reason that Government employees are called as Government servants or civil servants or public servants. Going by the constitutional theory, our constitution is based on rule of law which is a mandate of “we the people of India”. It is hoped and expected that officers like respondent officer would bear in mind that they are meant mainly to serve the cause of the public and to be servants of the people and no impression should be created that citizens who approach them are really subjects which can be conceived only in a feudal order. This Court is also aware that in many other aspects officers/respondents would have done good work in Government service. This Court is now concerned only with such serious violations in similar cases that have very often coming before this Court. Therefore, the officers should realize that where the judgments of the court has become final and conclusive and where the legislature has also made it very clear in terms of provisions as in Section 27A (13) of the Act, and so long as those judgments and orders are not varied or altered in the manner known to law by filing appropriate appeal etc., it shall be the bounden liability and responsibility of the Government servants to faithfully and sincerely comply with the directions and orders passed by the judicial organs, as otherwise the very concept of separation of powers envisaged in our Constitution, will be flagrantly violated. If judgments and orders which have become final and conclusive are not complied for a very long time or are improperly complied, it is as good as treating judgments and judicial verdicts as mere parchments of a papers, which it is not. If judgments and orders which have become final and conclusive are not complied for a very long time or are improperly complied, it is as good as treating judgments and judicial verdicts as mere parchments of a papers, which it is not. By a judgment or an order passed by the court which has become final and conclusive is a living organ and the words in the judgment will bear flesh only through sincerity and faithfulness of the officers who are obliged to comply with it. Once a judgment become final and conclusive, the task of the judiciary is over then the matter would fall within the province of the executive in such cases to comply with their part. If this is breached, the sufferers will not be the judges or authors of the judgment but the litigants and the people who have spent the precious energies and time to vindicate their lawfully enforceable rights and interests. In the light of the above aspects, the above Contempt of Court need not be kept pending any longer and could be closed. With these observations and directions, the above Contempt of Court Case will stand closed.