IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 WP(C).No. 14591 of 2005(K) -------------------------- PETITIONER: ---------------- VASANTHA ANTHARJANAM, W/O. LATE NARAYANAN NAMBOODIRIPAD, PATHISSERY MANAKKAL, PUNNAPPALA, MALAPPURAM DIST. BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRI.BABU S. NAIR RESPONDENTS: ------------------ 1. THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE TAHSILDAR, NILAMBUR, MALAPPURAM DISTRICT. 3. THE VILLAGE OFFICER, WANDOOR VILLAGE, MALAPPURAM DISTRICT. 4. K.M. SETHUMADHAVAN NAMBOODIRIPAD, S/O. LATE VASUDEVAN NAMBOODIRIPAD, KIDANGAZHI MANA SREEVALSOM, WANDOOR, MALAPPURAM DISTRICT. 5. K.M. RAMA ANTHARJANAM, D/O. LATE VASUDEVAN NAMBOODIRIPAD,KIDANGAZHI MANA, SREEVALSOM, WANDOOR, MALAPPURAM DISTRICT. ADDL.R6: BHARATHIYA VIDYA NIKETHAN, WANDOOR P.O., MALAPPURAM, REP. BY ITS MANAGER, K.M. MOHANAN NAMBOOTHIRI, S/O. DR. K.N. NAMBOODIRI, KARUMARAPPATTA MANA, P.O. WANDOOR, MALAPPURAM DT.(IMPLEADED AS PER ORDER DT.30.8.06 IN I.A.11642/06) BY ADV. SRI.P.M.POULOSE FOR R5 SRI.C.K.ABDUL RAHIM FOR R.4 SRI.BIJU M.JOHN FOR ADDL,.R6 GOVERNMENT PLEADER SRI. M.R. SABU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14591 of 2005 EXT.P1: COPY OF THE PROCEEDINGS IN C.R.NO.80/1974 DTD 22.4.1976 OF THE TALUK LAND BOARD ERNAD. EXT.P2: COPY OF THE LICENCE NO.C2378/1970 DTD 13.8.1970 ISSUED FROM THE RUBBER BOARD. EXT.P3: COPY OF THE JUDGMENT DTD 19.7.2004 IN W.P.(C) NO.10360/2004 OF THIS HON'BLE COURT. EXT.P4: COPY OF THE NOTICE ISSUED BY THE VILLAGE OFFICER, WANDOOR TO THE PETITIONERS DATED 6.11.2004. EXT.P5: COPY OF THE REPLY SUBMITTED BY THE PETITIOENRS BEFORE THE VILLAGE OFFICER, WANDOOR DATED 19.11.2004. EXT.P6: COPY OF THE ORDER OF R3 DATED 4.12.2004 AS NO.558/04. EXT.P7: COPY OF THE APPEAL, FILED BY THE PETITIONER AND OTHERS BEFORE THE SECOND RESPONDENT DT. 28.12.2004. EXT.P8: COPY OF THE REPORT OF THE SECOND RESPONDENT AS NO.B5.9342/03 DATED 2.8.2004. EXT.P9: COPY OF THE ORDER OF THE 2ND RESPONDENT AS NO.B2.3807/2000 DATED 25.8.2000. EXT.P10: COPY OF THE PROCEEDINGS OF THE TAHSILDAR, ERNAD IN C.R. NO,109/1973 DTD 18.2.1974. R6'S EXHIBITS EXT.R6(a): COPY OF THE GIFT DEED NO.1230/05 DATED 24/2/05 OF S.R.O. WANDOOR. R5'S EXHIBITS EXT.R5(1): COPY OF THE ORDER IN C.R.P.NO.1108/97. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.14591 OF 2005 ---------------------------------------- Dated this the 23rd day of September, 2008 JUDGMENT This writ petition raises a question as to, between the petitioner on the one hand and respondents 4 and 5 on the other, who is the person entitled to pay land tax in respect of 10.62 acres of land in Re-Survey No.478/1A & 1B. The predecessor-in- interest of respondents 4 and 5 was the landlord of the property. He executed a lease deed dated 17.12.1969 registered as document No.2589/1969 of Wandoor Sub Registry in favour of the predecessor-in-interest of the petitioner namely, Narayanan Namboodiripad. The said Narayanan Namboodiripad included this property also as his in the ceiling case in respect of his property under the Kerala Land Reforms Act, and the Taluk Land Board, by Ext.P1 order held that there was an oral lease from the landlord in the favour of the declarant. The Taluk Land Board ultimately accepted the said land as part of the land of the declarant to be included in the ceiling case. However, finding that including that property also the petitioner's predecessor-in- interest did not W.P.(c)No.14591/05 2 have properties in excess of the ceiling limit, the ceiling case was closed. The petitioner's predecessor-in-interest filed an application for assignment of the landlord's right under the Kerala Land Reforms Act on the basis of the alleged oral lease in 1962-63, which was confirmed by the above said lease deed. The claim of the petitioner's predecessor-in-interest was negatived by the Land Tribunal and the Land Reforms Appellate Authority, which was confirmed by this Court in C.R.P.No.1108/97, order in which is produced by the 5th respondent as Ext.R5(1). According to the petitioner, even though the petitioner's claim for tenancy was negatived, the petitioner continued to be in possession of the property and respondents 4 and 5 or their predecessor-in-interest did not take any steps to recover possession of the property. 2. Thereafter, a dispute arose regarding entitlement to pay tax in respect of the property. The 5th respondent filed W.P.(C) No.10360/04 before this Court in respect of the same. This Court, by Ext.P3 judgment, directed the Village Officer to take a decision on the dispute and recover the tax from whoever is liable, through an adjudication order. While the W.P.(c)No.14591/05 3 matter was thus pending before the Village Officer for orders as per direction in Ext.P3 judgment, the Tahsildar concerned, he being the prescribed authority notified under the Kerala Land Tax Act, issued Ext.P8 statement to the District Collector, apparently as a communication in respect of the writ petition in which Ext.P3 judgment has been passed, recommending in favour of the petitioner. Subsequently, by Ext.P6 order, the Village Officer concerned held otherwise holding that it has been decided to accept the land tax temporarily from respondents 4 and 5 and to report to the higher authorities for re-opening of the ceiling case of the predecessor-in-interest of the petitioner. The petitioner filed Ext.P7, constituting the same as an appeal against Ext.P8 order, before the Tahsildar, Nilambur. The petitioner now seeks a direction to the Tahsildar, Nilambur the 2nd respondent herein, to consider and pass orders on Ext.P7. 3. This is stoutly opposed by respondents 4 and 5. They would dispute the claim of possession raised by the petitioner. According to respondents 4 and 5, they are actually in possession of the property. They would submit that after W.P.(c)No.14591/05 4 suffering Ext.R5(1) order, the petitioner cannot now claim that she is in rightful ownership and possession of the property. Therefore, this process of filing Ext.P7 itself is an abuse of the process of law is the contention raised by respondents 4 and 5. They would therefore, seek dismissal of the writ petition. 4. I have considered the rival contentions in detail. 5. I am not inclined to go into the disputed questions of title, possession etc., in respect of the property in question. Rightly or wrongly this Court passed Ext.P3 judgment, whereby the Village Officer was directed to decide the dispute between the petitioner and respondents 4 and 5 as to who is entitled to pay tax in respect of the property. The Government had by SRO No.119/1970 issued under Section 3(7) of the Kerala Land Tax Act, 1961 appointed Taluk Tahsildars to perform all the functions of the prescribed authority under Section 5 of the Act. That being so, prima facie it appears that the Tahsildar was the appropriate authority to decide the dispute between the parties. But perhaps because the said fact was not brought to the notice of this Court, this Court passed Ext.P3 judgment directing the Village Officer to decide the dispute. W.P.(c)No.14591/05 5 But I find that under Section 9 of the Kerala Land Tax Act, from the orders of the prescribed authority, an appeal is provided to the District Collector. Nobody can dispute the fact that the petitioner has got a right to get her grievances redressed by a higher authority against the order of the Village Officer. She thought that the Tahsildar being the next higher authority to the Village Officer, she can prefer a petition before the Tahsildar, which is Ext.P7. I am of opinion that in the peculiar facts and circumstances of the case, the Appellate Authority under the Act should decide the issue against Ext.P6 order on merits. In the above circumstances, I dispose of this writ petition with the following directions: The 2nd respondent shall forward Ext.P7 to the 1st respondent – District Collector, who is the appellate authority, within a period of one week from the date of receipt of a copy of this judgment. The District Collector shall consider the same as an appeal filed under Section 9 of the Act and decide the question on merits as to between the petitioner on the one hand and respondents 4 and 5 on the other, who is entitled to pay tax in respect of the property in question under the Kerala W.P.(c)No.14591/05 6 Land Tax Act. The District Collector shall pass orders on Ext.P7, after affording an opportunity of being heard to the petitioner as well as respondents 4 and 5, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. Status quo as on today shall be maintained till orders are thus passed by the District Collector. If any of the parties are aggrieved by the orders passed by the District Collector as directed above, they may approach the District Court under Section 10 of the Kerala Land Tax Act. I further make it clear that I have not considered any of the disputed questions on merits and it would be up to the District Collector to decide every issue involved in the case independently on the merits of the contentions of the parties. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.14591/05 7