IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 16491 of 2009(F) -------------------------- PETITIONER(S): --------------- HAZEENA, W/O.HAMSA, CHERATTUTHODI HOUSE, KARUVAMBARAM P.O., MANJERI. BY ADV. SRI.ALEXANDER GEORGE SRI.J.ABHILASH RESPONDENT(S): --------------- 1. THE TAHSILDAR, TALUK OFFICE, OTTAPPALAM. 2. VILLAGE OFFICER, MUTHUTHALA VILLAGE, PATTAMBI P.O. 3. PATTAMBI SERVICE CO-OPERATIVE BANK LTD., MUTHUTHALA BRANCH, PATTAMBI P.O. 4. GOVINDAN, VARIKKAKUZHIYIL HOUSE, MUTHUTHALA AMSOM, PATTAMBI P.O., PALAKKAD DISTRICT. ADV. SRI.S.P.ARAVINDAKSHAN PILLAY FOR R3 SMT.N.SANTHA FOR R3 SRI.S.A.ANAND FOR R3 SRI.PETER JOSE CHRISTO FOR R3 SRI.RAMESH. C.R. FOR R3 GOVERNMENT PLEADER SHRI.K.RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 16491/2009. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE SALE DEED. P2. COPY OF THE SALE DEED DTD.14.7.06. P3. COPY OF THE SALE DEED DTD.22.7.05. P4. COPY OF THE CERTIFICATE FROM LAND TRIBUNAL, PATTAMBI. P5. COPY OF THE APPLICATION DTD.28.1.2009. P6. COPY OF THE ORDER DTD.7.2.2009. P7. COPY OF THE REQUEST DTD.28.4.2009 BEFORE R1. P8. COPY OF THE MORTGAGED DEED. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 16491 of 2009 ================== Dated this the 5th day of July, 2010 J U D G M E N T The 4th respondent obtained 44 cents of land by Ext.P4 certificate of purchase issued under the Kerala Land Reforms Act, by the Pattambi Land Tribunal-I. Out of those 44 cents, the 4th respondent settled 10 cents in favour of his son Pramod. Then by subsequent transactions, the husband of the petitioner became the owner in possession of the said 10 cents. The petitioner's husband executed Ext.P1 sale deed in favour of the petitioner. Thus the petitioner became the owner of 10 cents of property in survey No.3/12 of Muthuthala Village. According to the petitioner, after purchase by the petitioner's husband and even prior that, land tax was being accepted from the land holder. But when the petitioner approached the 2nd respondent for paying tax, the 2nd respondent refused to accept tax on the ground that the property has been mortgaged to the 3rd respondent-Pattambi Service Co-operative Bank. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs; “(a) To call for the records leading to this case and peruse the same. (B) Issue a writ of mandamus or any other appropriate writ, direction or order, directing respondent No.2 to accept the land tax belongs to the petitioners property situated in Sy.No.3/12 of Muthuthala Village and to issue a site plan and possession certificate. (C) Issue a direction to the 1st respondent to consider Ext.P7 and to conduct an enquiry and to direct the 1st respondent to accept the w.p.c.16491/09 2 tax which is to be paid by the petitioner and direct the 2nd respondent to issue possession certificate.” 2. The contention of the petitioner is that the petitioner's husband purchased this land after making all reasonable enquiries in respect of the encumbrances in the property and it is after satisfying himself that there was no encumbrance in the property that the petitioner's husband purchased the property. She would further submit that even otherwise the 2nd respondent cannot refuse to accept the tax on the ground that that there is a mortgage in respect of the property in favour of the 3rd respondent. According to her, mortgage as such does not affect the ownership of the property and insofar as only the landholder can pay tax under the Kerala Land Tax Act, if the petitioner does not pay land tax in respect of the property, the State will not get revenue in respect of the property. As such, by the action of the 2nd respondent, the State is the loser. Therefore, the 2nd respondent cannot refuse to accept land tax in respect of the property, is the contention raised. 3. The 3rd respondent would contend that although Ext.P4 mentions 44 cents, the 4th respondent possessed only 39 cents and that is why the 4th respondent executed a sale deed in respect of only 39 cents. They would, therefore, submit that the 10 cents which is in the possession of the petitioner are also included in the 39 cents. They would further submit that when the mortgage is subsisting, the w.p.c.16491/09 3 petitioner is not entitled to pay land tax in respect of the property. 4. The learned Government Pleader would contend that in view of the the mortgage, the 2nd respondent cannot accept land tax in respect of the property. 5. I have considered the rival contentions in detail. 6. None of the parties have been able to point out to me any provision of law, which prohibits acceptance of tax in respect of a property when the property is under a mortgage to a creditor by either the owner of the property or a former owner of the property. It is settled law that the mortgage runs with the land and transfer of ownership after the creation of the mortgage does not affect the validity of the mortgage itself. If a prospective purchaser is willing to purchase the property with the mortgage, there is no prohibition for the owner to sell the property subject of course to the mortgage. Such sale does not in any way affect the rights of the mortgagee for enforcing the mortgage and he can at any time enforce the mortgage in accordance with the provisions of the law applicable. If that be so, the fact that a property is the subject matter of a mortgage does not empower the Village Officer to refuse to accept land tax. Land tax is revenue to the State. The person liable to pay tax is the land holder as defined under the Kerala Land Tax Act. Only the land holder can pay tax and not anybodyelse. Tax has also to be paid every year before the w.p.c.16491/09 4 date fixed as per the Act. If the land holder does not pay tax or the Village Officer refuses to accept tax from the land holders, the loser will be the State exchequer. There is no reason why the State should lose or postpone receipt of land tax simply because a land is subject to a mortgage. In fact it is the duty of the Village Officer to see that revenue due to the State in respect of the land under his jurisdiction is properly collected and credited to the State exchequer. Therefore, I do not think that the Village Officer can validly refuse to accept tax in respect of a property simply because the land is subject matter of a mortgage. As such, I am satisfied that the 2nd respondent was not correct in refusing to accept tax in respect of the property in question from the petitioner. Accordingly, there would be a direction to the 2nd respondent to allow the petitioner to pay tax in respect of the property in question. However, it would be open to respondents 1 or 2 to endorse in the tax receipt issued to the petitioner that the land is subject to a mortgage in favour of the 3rd respondent. They can do so in the possession certificate also, if any, issued in respect of the said property. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.16491/09 5