Kerala High Court
K.C.Muhammed Iqbal vs The Deputy Tahsildar on 20 March, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941
WP(C).No.14019 OF 2016(B)
PETITIONER:
K.C.MUHAMMED IQBAL
AGED 56 YEARS,S/O.MOOSA,RESIDING AT KAKKACHILLATT
HOUSE,MAMPAD, MALAPPURAM.
BY ADVS.
SRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENTS:
1 THE DEPUTY TAHSILDAR
TALUK OFFICE,NILAMBUR, MALAPPURAM-679 329.
2 THE VILLAGE OFFICER
MAMBAD,MALAPPURAM-676 542.
3 THE DIVISIONAL FOREST OFFICER
OFFICE OF THE DIVISIONAL FOREST OFFICER,
CHALAKKUDY,THRISSUR-680 307.
4 THE CHIEF CONSERVATOR OF FOREST(NORTHERN REGION),
MATHOTTAM,BEYPORE,KOZHIKODE-673 015.
5 THE DISTRICT COLLECTOR
MALAPPURAM-676 505.
R1-5 BY SPECIAL GOVERNMENT PLEADER SRI.SANDESH RAJA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON,
30.1.2020 ALONG WITH WP(C).38043/2018(E), THE COURT ON
20.03.2020 DELIVERED THE FOLLOWING:
W.P.(C).Nos.14019/16 &
38043/18 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941
WP(C).No.38043 OF 2018(E)
PETITIONER:
K.C.MUHAMMED IQBAL,
AGED 58 YEARS, S/O MOOSA, RESIDING AT
KAKKACHILLATT HOUSE, MAMPAD, MALAPPURAM.
BY ADVS.
SRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENTS:
1 THE DEPUTY TAHSILDAR(REVENUE RECOVERY),
TALUK OFFICE, NILAMBUR, MALAPPURAM - 679329.
2 THE VILLAGE OFFICER,
MAMBAD,
MALAPPURAM-676542.
3 THE DIVISIONAL FOREST OFFICER,
OFFICE OF THE DIVISIONAL FOREST OFFICER,
CHALAKKUDY,
THRISSUR-680307.
4 THE DISTRICT COLLECTOR,
MALAPPURAM-676505.
5 JAYASREE A.,
ADDITIONAL TAHSILDAR, PERINTHALMANNA TALUK
OFFICE, PERINTHALMANNA,
MALAPPURAM-679322.
W.P.(C).Nos.14019/16 &
38043/18 3
R1-4 BY GOVERNMENT PLEADER SANDESH RAJA
R5 BY ADV. SMT.C.S.RAJANI
R5 BY ADV. SRI.N.M.MADHU
OTHER PRESENT:
SPL. GP SANDESH RAJA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON, 30.1.2020 ALONG WITH WP(C).14019/2016(B), THE COURT ON
20.03.2020 DELIVERED THE FOLLOWING:
W.P.(C).Nos.14019/16 &
38043/18 4
ANU SIVARAMAN, J.
= = = = = = = = = = = = = = =
W.P.(C).Nos.14019 of 2016 & 38043 of 2018
= = = = = = = = = = = = = = = =
Dated this the 20th day of March, 2020
JUDGMENT
1. W.P.(C).No.14019/2016 is filed challenging Exhibits P3, P4 and P5 notices issued to the petitioner seeking payment of amounts from the petitioner consequent to the termination of a contract. Exhibit P7 revenue recovery proceedings initiated for realising the amounts covered by the notices is also under challenge. By an interim order dated 7.4.2016, the petitioner was required to pay an amount of Rs.3 lakhs as condition for an interim order of stay of coercive proceedings. It is stated that the petitioner could not make the payment and the recovery proceedings therefore continued. It is stated that the petitioner had filed O.S.No.376/2011 before the Sub Court, Irinjalakuda claiming the amounts due to him as return of earnest money and security deposits as well as damages. Though the suit was dismissed, an appeal preferred by the petitioner as RFA.No.166/2014 is pending against such W.P.(C).Nos.14019/16 & 38043/18 5 dismissal. It is stated that the action of the respondents in proceeding against the petitioner for recovery of unascertained amounts without the amounts due being adjudicated in independent proceedings is illegal and unsustainable.
2. In W.P.(C).No.38043/2018, the contention is that the requisition for revenue recovery had been returned by the 4 th respondent to the office of the 3rd respondent, on the pendency of RFA. It is stated that the attachment on the petitioner's property stood lifted by Exhibit P7 order dated 24.1.2018. It is submitted that Exhibit P8 which is an order of attachment passed by the 1st respondent without a further requisition having been issued is bad in law. The 5 th respondent, at whose instance the petitioner contends that Exhibit P8 order of attachment has been issued, is also made a party to the writ petition in his personal capacity.
3. The learned counsel for the petitioner relies on the decisions of the Apex Court in Kailash Nath Associates v. Delhi W.P.(C).Nos.14019/16 & 38043/18 6 Development Authority and another [(2015) 4 SCC 136] and Bharath Sanchar Nigam Limited and another v. Motorola India Private Limited (2009) 2 SCC 337] to contend that the unilateral calculation of damages by a party to the contract and the enforcement of the same against the other party without there being any responsibility fixed as to the breach of the contract is unsustainable in law. It is submitted by the learned counsel for the petitioner that Exhibits P3 and P4 are notices issued against the petitioner without any quantification of the damages and are unilateral exercises by one party to the contract. It is submitted that the petitioner is disputing the liability and contends that there was no breach at his instance and therefore the action taken by the respondents to realise the amounts, which are neither quantified in accordance with law, nor admitted, is bad in law.
4. Detailed counter affidavits had been placed on record by the respondents in W.P.(C).No.14019/2016. It is contended therein that the suit filed by the petitioner was only with regard to return of earnest money and security deposit and that the W.P.(C).Nos.14019/16 & 38043/18 7 pendency of the Regular First Appeal would have no effect on the quantification of the amounts due from the petitioner in terms of the contract. It is stated that Exhibits P3 and P4 notices, which are under challenge, are notices containing detailed statement of quantification of the amounts due and that such quantification is specifically provided in terms of the contract. It is stated that Exhibit P6 reply submitted by the petitioner would clearly show that there is no dispute raised by the petitioner as to the quantification which is specifically in terms of the contract and involves only arithmetic calculation. It is submitted that in view of the fact that the petitioner has not raised any bona fide dispute as to the liability, the petitioner has no grounds to raise as against such quantification, which is only an excercise in accordance with the contract entered into between the parties.
5. The relevant pleadings in the counter affidavit are at paragraphs 2 and 3 of the same, which read as follows:-
" 2. The tender for the works of working down timber and firewood from 1935 Kuttenchira teak plantation was on 23.08.2006. The petitioner has quoted the lowest tender and the W.P.(C).Nos.14019/16 & 38043/18 8 tender was confirmed by the Chief Conservator of Forests (Northern Region) and intimated the petitioner to execute the agreement on 08.12.2006. But the petitioner deliberately failed to execute the agreement in proper time. The petitioner has executed the agreement only on 22.01.2007, after a lapse of more than one month from the date of intimation of confirmation of tender. As per the agreement the period of work was 4 months from the agreement date, but he could not complete the work in this period. So, a time extension of 7 months was granted to him based on his request for the completion of work. But he failed to complete the work in the extended time also. Therefore the plantation was resumed to department and the work was completed by the department itself in the risk and loss of the petitioner. The work was completed on 04.03.2011.
3. As per the tender conditions, in the case of a defaulter who violated the tender conditions all amounts due to him will be forfeited to Government or will be deducted from the loss sustained 'in the process of retendering the work at the risk and loss of the defaulter. However in this case part payment of the kolvila bill received from the depots a net amount of Rs.3,17,779/ have already been paid to him after deducting I.T., S.T., F.D.T etc."
6. An additional counter affidavit has also been placed on record, producing several documents to show that the amounts had been quantified with due notice to the petitioner as provided in the contract. It is also stated in paragraph 5 of the additional counter affidavit as follows:-
W.P.(C).Nos.14019/16 & 38043/18 9 "5. It is humbly submitted that the petitioner initially filed W.P.(c)s, 7669 and 7682 / 2008 for a direction of the respondent to pay the various amount due to the petitioner and further direction to issue receipt for 131.947 cubic meter of timber delivered by the petitioner at the depots. A detailed statement was filed by the respondent disputing the claims raised by the petitioner in the writ petition. The Hon'ble High Court dismissed the writ petitions finding that the disputed facts cannot be decided in the writ petition and without prejudice to the right of the petitioner to file a civil suit. The petitioner filed 0.S.639/2009 before the Court of Principal| Subordinate J'udge, Irinjalakkuda with a prayer that the preliminary agreement dated 22.01.2007 is void, for awarding damages to the tune of Rs.75,000 and for return of security deposit and earnest money to the plaintiff. The above suit was dismissed by the Court of Principal Subordinate Judge, Irinjalakkuda finding that the defendant has not violated the agreement/'Karar' and that the plaintiff himself had violated the agreement and that the plaintiff has not proven that he is not entitled for damage and the prayer for injunction, declaration and claim for damages prayed by the plaintiff therein was dismissed. A true copy of the judgment in 0.S. 639/2009 dated 23.12.2011 is produced herewith and marked as Exhibit R3(c)."
7. With regard to the contentions of the petitioner in W.P.(C).No. 38043/2018, a statement has been filed by the 1 st respondent which reads as follows:-
W.P.(C).Nos.14019/16 & 38043/18 10 "5. It is submitted that the Divisional Forest Officer, Chalakkudi submitted a requisition to District Collector Malappuram under Section 69/2 of the Kerala Revenue Recovery Act, 1968 to recover an amount of Rs. 36,25,774/- from the petitioner Sri.Muhammed lqbal.
Accordingly, the District Collector Malappuram issued Revenue Recovery Certificate No.2016/3742/10 dated 22/01/2016 revenue recovery certificate under Section 69/3 of the Kerala Revenue Recovery Act 1968 to recovery the amount from the petitioner on the basis of that revenue recovery certificate the 1 st respondent the Deputy Tahsildar (Revenue Recovery) Taluk Office, Nilambur issued statutory demand notice in Form 1 and 10 under Section 7 and 34 of the Kerala Revenue Recovery Act 1968 respectively and those were served to the petitioner (Ext.P5). Since the defaulter did not respond the above notice and he had no movable property to attach and sale, an extent of 0.0354 Hectares of land comprised in the Block 83 Re- Survey 252/1 of Mampad Village was attached by the 2 nd respondent Villlage Officer Mampad on 26/02/2016 since the auction process begins the Divisional Forest Officer Chalakkudy inform vide Letter No. CA2/205/08 dated 22/12/2016 that RFA 166/2014 number case pending against Requisition Authority at Honourable High Court. In this circumstance the Revenue Recovery Certificate was returned to the District Collector Malappuram.
6. It is submitted that the defaulter filed WP(C) No. 14019/2016, the Honourable High Court granted an interim stay against revenue recovery procedure as prayed for, on condition that the petitioner pays an amount of Rs. 3,00,000/- within one month from 07/04/2016. But the petitioner failed to pay the amount and the interim order, is not in force. The defaulter transferred the attached W.P.(C).Nos.14019/16 & 38043/18 11 land to Jamsheermon as per Document No.7272/2016 of Sub Registrar officer Nilambur. The transfer of attached land is invalid under Section 44 Sub Section (1) and (2) of the Kerala Revenue Recovery Act 1968.
7. It is submitted that as again the 3 rd respondent Divisional Forest Officer Chalakkudi issued Revenue Recovery Certificate No. 2017/4812/08 revenue recovery certificate under Section 69/2 of the Kerala Revenue Recovery Act 1968, as an executing officer, Deputy Tahsildar (RR) Nilambur TaIuk the 1 st respondent issued Form 1 and 10 notices to the petitioner on 18/12/2017 and the petitioner received the notice on 05/01/2018 under Section 7 and 34 of the Kerala Revenue Recovery Act, 1968. The petitioner suppressing the fact of surving demand notice to him has filed this writ petition. The defaulter did not respond the above notice and he had no movable property to attach and sale. In this circumstance an extent of 0.0354 Hectares of land comprised in the Block 83 Re- survey 252/1 of Mampad Village attached by the Village Officer Mampad on 27/01/2018 and notice of attachment of immovable property (Form 11) issued to the defaulter on 29/01/2018 under Section 36 0f theKerala Revenue Recovery Act 1968.
8 It is submitted that the 1st respondent has issued fresh demand notice under Section 7 and 34 of the Kerala Revenue Recovery Act, 1968 and the same served to the petitioner on 05/01/2018.
9. It is submitted that the 5 th respondent working as Deputy Tahsildar (RR) Nilambur, as an executing officer the 5 th respondent issues demand notices under Section 7 and 34 of the Kerala Revenue Recovery Act 1968. The attachment notice under Section 36 and order of withdrawal of attachment under Section 42 of the Kerala W.P.(C).Nos.14019/16 & 38043/18 12 Revenue Recovery Act, 1968 issued by the Tahsildar, Nilambur. The 3rd respondent issued fresh revenue recovery requisition on 07/12/2017 under Section 69(2) of the Kerala Revenue Recovery Act, 1968 and 4th respondent the District Collector Malappuram issued revenue recovery certificate No. 2017/4812/08 on 18/12/2017 to recover the forest dues under Section 69(3) of the Kerala Revenue Recovery Act 1968. The 1st respondent issued From 1 and 10 notices on 18/12/2018 and 2nd respondent serving notice to the defaulter. The petitioner violates the interim order of WP(C) 14019/2016 of Honourable High Court and the revenue recovery certifcate No. 2016/3742/10 returned on 02/05/2017 to requisition authority. In this circumstances as a government officer the Tahsildar Nilambur communicate with the 3rd respondent Divisional Forest Officer Chalakkudy to Protect the government interest. The petitioner hiding the fact to serve him fresh demand notice on 5/01/2018. The allegations of the petitioner that the 5'" respondent has grudge over the petitioner, and demanded money are baseless."
8. The learned Special Government Pleader also relies on the decisions of the Full Bench of this Court in Abdul Rahiman v. Divisional Forest Officer [1988 (2) KLT) 290 FB] and of a single Judge of this Court in Aneesh T.P. V. Divisional Forest Officer and another [2018 KHC 5022] to contend that where the contract itself provides the methodology for assessing the damages in the event of its breach, there need be no further W.P.(C).Nos.14019/16 & 38043/18 13 quantification of damages by an outside agency and revenue recovery proceedings for recovery of damages assessed as per the provisions of the contract is legally valid and enforceable.
9. I have considered the contentions advanced on either side. It is noticed that the Regular First Appeal is pending against the dismissal of the suit filed by the petitioner for realisation of money and damages. The 3rd respondent has produced Exhibit R3(c) judgment of the Principal Subordinate Court, Iringalakuda in O.S.No.639/2009. The said suit was filed by the petitioner for restraining the retender of the work at the risk and cost of the petitioner and for decree for return of security deposit and earnest money as also for damages. The said suit was considered in extenso and was dismissed as early as on 23.12.2011. Though the learned counsel for the petitioner submitted that an appeal had been preferred against the judgment, it appears that the said judgment has become final and no appeal is pending as against the same. The question with regard to termination of risk and cost therefore stands settled as against the petitioner. Exts.P3 and W.P.(C).Nos.14019/16 & 38043/18 14 P4 notices in W.P.(C).No. 14019/2016 would disclose that there is a specific quantification which is essentially arithmetical in nature with regard to the amounts due from the petitioner in terms of the contract. The petitioner, in Exhibit P6 objection, raises a contention that he has suffered huge losses and that RFA No.166/2014 is pending as against the dismissal of the O.S.. Apart from stating that he does not owe any amounts to the respondents, he has not disputed the specific quantification of the liability by Exhibits P3 and P4 notices. It is also to be noticed that the issue with regard to termination had earlier been considered by this Court and the writ petitions filed by the petitioner had been rejected as early as in the year 2009. In the above factual situation, I am of the opinion that the contentions raised by the petitioner in W.P. (C).No.14019/2016 cannot be accepted.
10.With regard to the pleadings in W.P.(C).No.38043/2018, I am of the opinion that since fresh requisition has been issued by the competent authority and the revenue recovery proceedings had been continued on the basis of the same, the W.P.(C).Nos.14019/16 & 38043/18 15 contentions raised by the petitioner are not liable to be accepted. The writ petitions fail and the same are accordingly dismissed.
Sd/-
Anu Sivaraman, Judge sj APPENDIX OF WP(C) 14019/2016 PETITIONER'S EXHIBITS:
P1 A COPY OF THE SUIT AS OS 376/11 BEFORE THE
SUB COURT, IRINJALAKUDA.
P2 A COPY OF THE WRITTEN STATEMENT FILED BY
THE FOREST OFFICIALS.
P3 A COPY OF THE NOTICE DTD.7.1.2015.
P4 A COPY OF THE NOTICE DTD.9.7.2014.
P5 A COPY OF THE NOTICE DTD.30.9.2015.
P6 A COPY OF THE REPLY SUBMITTED BY THE
PETITIONER DTD.3.11.2015.
P7 A COPY OF THE REVENUE RECOVERY NOTICE.
RESPONDENT'S EXHIBITS:
EXHIBIT R3 A TRUE COPY OF THE LETTER DATED 08.12.2006
EXHIBIT R3 B TRUE COPY OF THE LETTER CA2-4729/05 DATED
03.01.2007
EXHIBIT R3 C A TRUE COPY OF THE JUDGMENT IN O.S. 639/2009
DATED 23.12.2011
EXHIBIT R3D TRUE COPY OF THE JUDGMENT OF THE SUB JUDGE,
IRINJALAKUDA IN O.S. NO.376/2011
W.P.(C).Nos.14019/16 &
38043/18 17
APPENDIX OF WP(C) 38043/2018
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE NOTICE DATED
7.1.2015.
EXHIBIT P2 A TRUE COPY OF THE NOTICE DATED
9.7.2014.
EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED
30.9.2015.
EXHIBIT P4 A TRUE COPY OF THE REPLY SUBMITTED THE
PETITIONER DATED 3.11.15.
EXHIBIT P5 A TRUE COPY OF THE NOTICE.
EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION SENT
BY THE 4TH RESPONDENT TO THE OFFICE OF
THE 3RD RESPONDENT DATED 15.5.2017 AND
OBTAINED BY THE PETITIONER UNDER RIGHT
TO INFORMATION ACT.
EXHIBIT P7 A TRUE COPY OF THE ORDER PASSED BY THE
1ST RESPONDENT DATED 24.1.2018.
EXHIBIT P8 A TRUE COPY OF THE ORDER OF ATTACHMENT
BY THE 1ST RESPONDENT AS CONTEMPLATED
UNDER SECTION 36 OF THE REVENUE
RECOVERY ACT.
EXHIBIT P9 A TRUE COPY OF THE LETTER DATED
28.11.17 BY THE 1ST RESPONDENT TO THE
3RD RESPONDENT OBTAINED BY THE
PETITIONER UNDER THE RIGHT TO
INFORMATION ACT.
W.P.(C).Nos.14019/16 &
38043/18 18
EXHIBIT P10 TRUE COPY OF THE SALE NOTICE ISSUED BY
THE 1ST RESPONDENT DATED 06.05.2019.
A true copy of the sale notice issued
EXHIBIT P11 by the 1st respondent dated 6.5.2019.
EXHIBIT P12 A TRUE COPY OF THE REPRESENTATION MADE
BY THE PETITIONER BEFORE THE FOREST
ADALATH DATED 24.7.2019.
EXHIBIT P13 A TRUE COPY OF THE RECEIPT ISSUED TO THE
PETITIONER BY THE DIVISIONAL FOREST
OFFICER, CHALAKUDY.
EXHIBIT P14 A TRUE COPY OF THE NOTICE DATED 6.7.2019
ISSUED BY THE 1ST RESPONDENT TO THE
PETITONER.
EXHIBIT P15 A TRUE COPY OF THE NOTICE DATED 18.9.2019
ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER.
EXHIBIT P16 A TRUE COPY OF THE NOTICE DATED 19.12.2019
ISSUED BYTHE 1ST RESPONDENT TO THE
PETITONER.
RESPONDENT'S EXHIBITS:
EXHIBIT R5(A) TRUE COPY OF THE COMPLAINT DATED
04.12.2017 SUBMITTED BY THE TAHSILDAR
TOT HE S.I. OF POLICE, NILAMBUR POLICE
STATION.
EXHIBIT R5(B) TRUE COPY OF THE REPORT SUBMITTED BY
THE TAHSILDAR UNDER THE RIGHT TO
INFORMATION ACT.
EXHIBIT R5(C) TRUE COPY OF THE PROCEEDINGS OF THE
DISTRICT COLLECTOR.
W.P.(C).Nos.14019/16 &
38043/18 19
EXHIBIT R5(D) TRUE COPY OF THE LETTER OF APPRECIATION
ISSUED BY THE DISTRICT COLLECTOR,
MALAPPURAM ON 27.10.2017.
True copy
PS to Judge