IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 WP(C).No. 29567 of 2008(T) -------------------------------------- PETITIONER: ------------------- VASUDEVAN,S/O.MADHAVAN NAIR AGED 54 YEARS, KARAPPARAMBIL, ISWARAMANGALAM, PONNANI, MALAPPURAM. BY ADVS. MR.K.MOHANAKANNAN, SMT. A.R. PRAVITHA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, MALAPPURAM. 3. TAHSILDAR, PONNANI 4. VILLAGE OFFICER, EZHUVATHIRUTHI, PONNANI TALUK, MALAPPURAM. R1 TO R4 BY SR.GOVERNMENT PLEADER SMT. N. SUDHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.29567/2008-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PARTITION DEED NO.2376/97 DTD. 18/07/97. EXT.P.2: COPY OF THE TAX RECEIPT DTD. 31/12/98. EXT.P.3: COPY OF THE REPRESENTATION DTD. 27/10/05 SUBMITTED BY THE PETITIONER TO THE R.2. EXT.P.4: COPY OF THE COMMUNICATION NO. B9.8348/05 DTD. 07/01/06 FROM THE R.3. TO THE PETITIONER. EXT.P.5: COPY OF THE STATEMENT GIVEN BY THE PETITIONER BEFORE THE R.3. DTD 17/01/06. EXT.P.6: COPY OF THE REPRESENTATION DTD. 06/07/06 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.7: COPY OF THE COMMUNICATION NO. B9/88/06 DTD. 13/09/06 FROM THE R.3. TO THE PETITIONER. EXT.P.8: COPY OF THE APPLICATION BY THE PETITIONER TO THE R.D.O. EXT.P.9: COPY OF THE PROCEEDINGS NO.K.500/08(2) OF THE PUBLIC INFORMATION OFFICER OF REVENUE DIVISIONAL OFFICE DTD. 05/02/08 TO THE PETITIONER. EXT.P.10: COPY OF THE PROCEEDINGS NO. E4-1186/06 DTD. 18/02/08 FROM THE TAHSILDAR TO THE PETITIONER. EXT.P.11: COPY OF THE REPRESENTATION DT. 12/02/08 OF THE PETITIONER TO THE R.2. EXT.P.12: COPY OF THE ORDER NO. B1 13027/08 DTD. 28/04/08 OF THE R.2. TO THE PETITIONER. EXT.P.13: COPY OF THE REPRESENTATION DTD. 15/05/08 TO THE R.2. FROM THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 29567 OF 2008 -------------------------- Dated this the 4th day of January, 2010 J U D G M E N T Heard the learned counsel appearing on both sides. 2. A parcel of land 13.11 cents in extent, situated in Re-survey No.181/7 and 181/8 of Ezhuvathiruthi Village in Ponnani Taluk, Malappuram District was allotted to the share of the petitioner as per Ext.P1 partition deed dated 18.7.1997. Thereafter, the petitioner paid land tax on 31.12.1998 in the Village Office, Ezhuvathiruthi Village. He did not pay tax for five years thereafter. When the petitioner approached the fourth respondent for payment of land tax, the Village Officer did not receive the tax. The petitioner thereupon moved the Tahsildar who directed him to appear for a hearing on 17.1.2006. The petitioner accordingly appeared before the Tahsildar on 17.1.2006 and submitted Ext.P5 statement. When orders were not passed thereafter, he submitted Ext.P6 petition before the District Collector, Malappuram. The Tahsildar thereafter sent Ext.P7 letter dated 13.9.2006 directing him to produce the title deed, earlier receipts evidencing payment of tax and also the non- encumbrance certificate. Ext.P7 in so far as it directs the petitioner to produce the non-encumbrance certificate is under challenge in this writ petition. 3. The petitioner contends that the provisions of the Kerala Land W.P.(C) No. 29567/08 2 Tax Act, 1975 or Government orders do not stipulate that land owner should produce non-encumbrance certificate in order to enable him to pay land tax and therefore the stipulation in Ext.P7 that he should produce a non-encumbrance certificate is not sustainable in law. 4. The third respondent has filed a counter affidavit contending that a non-encumbrance certificate was insisted for the reason that the petitioner had not paid land tax for nearly five years and that his lands lie adjacent to lands acquired for the national highway. It is also stated that after the land was acquired for the national highway, no re-survey has been conducted and that was the reason why he was called upon to produce the non-encumbrance certificate. The third respondent however does not dispute the positive averment made by the petitioner that there is no stipulation in the Kerala Land Tax Act, 1975 or any Government order that persons paying land tax should produce a non-encumbrance certificate in respect of their lands. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is evident from the pleadings and the submissions made at the Bar that land tax has not been received from the petitioner only for the reason that the petitioner has not produced a non-encumbrance certificate. Production of such a certificate was insisted upon for the reason that the lands belonging to the petitioner lies W.P.(C) No. 29567/08 3 near the lands acquired for the national highway. The respondents can easily ascertain whether any portion of the lands set apart to the share of the petitioner as per Ext.P1 partition deed has been acquired for the national highway under the provisions of the Land Acquisition Act, 1894 and possession thereof has been taken. The mere fact that the petitioner is permitted to pay land tax for the entire extent of 13.11 cents will not confer on him any title over the acquired lands. Further there is no provision in the Kerala Land Tax Act, 1975 which stipulates that if land tax is not paid for a period of more than five years, the land owner should produce a non-encumbrance certificate in order to enable him to pay land tax. No Government order containing such a stipulation was brought to my notice. In such circumstances, I am of the opinion that the respondents should receive land tax from the petitioner in respect of the whole of item No.5 of the schedule to Ext.P1 partition deed. I accordingly dispose of this writ petition with a direction to respondents 3 and 4 to receive land tax from the petitioner in respect of the lands described in item No.5 of Ext.P1 partition deed on the petitioner producing the originals of Exts.P1 and P2 for verification before the Village Officer along with attested photostat copies thereof. It is clarified that payment of land tax by the petitioner pursuant to this judgment and receipt thereof from him will not confer on him any right or title over any portion of W.P.(C) No. 29567/08 4 the said lands if his lands have been acquired by the State Government for widening the national highway. The land tax shall be received on the day the petitioner appears before the third respondent along with a certified copy of this judgment and the documents referred to above. The respondents shall also continue to receive land tax from the petitioner. It will be open to the respondents to cause a survey of the petitioner's land to be conducted to ascertain whether any portion thereof has been acquired by the Government or any other authority. If after survey, it is found that any portion of the land belonging to the petitioner has been acquired, the respondents need receive land tax only in respect of land remaining with the petitioner. P.N.RAVINDRAN, JUDGE vps