KURIKILAL BHAGAWATHI DEVASWOM Vs. STATE OF KERALA

JUDGEMENT

(1.) THE Petitioner,the power of attorney holder of the,Kurikilal Bhagavathi Devaswom,seeks to challenge Ext.P -3 notice of final assessment and demand under Section 6A sub -section(4)of the Kerala Land Tax Act,1961.The only ground on which challenge is raised to the demand and recovery is that the arrears of basic tax due is a public revenue due on the land,and as the land itself had become vested in the Government,public revenue which was a first charge on the land had become extinguished.It is difficult to accept the contention thus put forward by the counsel for the Petitioner.A first charge is created,as undoubtedly it appears to be,on the land in respect of arrears of public revenue.It may be that when the land in respect of which a first charge is available,becomes vested in the charge -holder,the charge itself no longer subsists.But,on principle,it is difficult to see how the very liability which was to be enforced by way of a charge against land has ceased to exist.This conclusion which strikes us as a matter of first principle only stands reinforced and strengthened by the provisions of the Act which we will advert to presently.Section 3 Clause(3)of the Land Tax Act,1961 defines the term 'land holder 'as: 3.( 3)'Landholder 'means: (a)In relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act,1963(1 of 1964 ),such cultivating tenant; (b)In relation to any land in the possession of a kanam tenant as defined in the Kanam Tenancy Act,1955(XXIV of 1955 ),such kanam tenant; (c)In relation to any land which has not been surveyed and is not held by a cultivating tenant referred to in sub -clause(a ),the proprietor of such land; (d)In relation to any other land,the registered holder for the time being of such land; and includes his legal representatives and assigns and any person who under any law for the time being in force is liable for the payment of public revenue due in respect of the land held by him. The landholder therefore includes a registered holder of the land.This definition was substituted from 1st January 1970 by Section 2 of the Land Tax(Amendment)Act,1972.The prior definition of the landholder emphasized more pointedly that the term meant the registered holder of the land.Section 5 Sub -section(3)enacts that the basic tax charged and levied under this Act shall be deemed to be public revenue on the land within the meaning of the Revenue Recovery Act,and shall be recovered under the provisions of that Act.Sub -section(2)enacts that the basic tax charged on any land shall be paid by the landholder of that land.From these provisions it is clear that basic tax is to be regarded as public revenue and recoverable as such;and further that a personal liability is cast on the landholder to satisfy the basic tax.With these provisions we may now turn to Section 72 of the Land Reforms Act on which reliance is placed.The said section in so far as it is material is as follows: 72.( 1)On a date to be notified by the Government in this behalf in the Gazette,all right,title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants(including holders of kudiyiruppus and holders of karaims)entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under Sub -section(2)of Section 59 have not been issued,shall,subject to the provisions of this section,vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date: Provided that,nothing contained in this sub -section shall apply to a holding or part of a holding in respect of which an application for resumption under the provisions of this Act is pending on such date before any court or tribunal or in appeal or revision. The vesting directed by this section is free from all encumbrances created by the landholders and intermediaries.The charge on the land for arrears of basic tax may not altogether be an encumbrance created by the landholders.Even assuming that it is,all that is directed by the section is that the right,title and interest of the landholders shall vest in the Government free from the said encumbrance.This provision has to be read,as pointed out by the learned Advocate General,along with Section 72S of the Act,which enacts: 72S.Notwithstanding anything contained in the Kerala Land Tax Act,1961,or in any other law for the time being in force,or in any contract,where the right,title and interest of the landowner and the intermediaries,if any,in respect of a holding have vested in the Government under Section 72,the cultivating tenant of that holding shall be liable to pay the basic tax payable in respect of that holding under the said Act and other taxes and cesses due in respect of that holding. It is thus made clear that despite the vesting,the liability to pay basic tax still continues in respect of the holding that has become vested.

(2.) THE learned Advocate General also invited our attention to the decision of a Division Bench of the Nagpur High Court in Ramgopal Raghunathdas v.Ramachandra Krishnarao Singau A.I.R.1949 Nag 354 to the effect that when there is a personal covenant in a deed which the mortgagee is at liberty to enforce,then the mere fact that he acquires the mortgaged property would not debar him from recovering his debt under the personal covenant,unless of course,the acquisition had the effect of extinguishing his debt,that is to say,unless it was acquired for that express purpose;in other words,if the consideration was extinguishment of the debt.But in cases where that is not so,the right to recover on the personal covenant remains,though the right to enforce the mortgage qua mortgage may go ;.The same is the principle that applies here.The personnal liability 'imposed by Section 5 Sub -section(2)of the Act continues to operate despite the vesting directed by the Land Reforms Act.In that view,we see no force in the contention that after the vesting the liability has ceased to exist and is no longer enforceable by distraint of the moveables as has happened in this case.