Kerala High Court
Ajikumar vs District Collector on 20 December, 2019
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941
WP(C).No.6458 OF 2010
PETITIONER/S:
1 AJIKUMAR
S/O. LATE SREEDHARAN, PUTHEN VEEDU, PUNNAMOODU,
KOODAL.P.O, PATHANAMTHITTA.
2 SAROJINI, W/O.LATE SREEDHARAN
PUTHEN VEEDU, PUNNAMOODU, KOODAL.P.O,,
PATHANAMTHITTA.
BY ADVS.
SMT.INDU SUSAN JACOB
SRI.LIJU.V.STEPHEN
RESPONDENT/S:
1 DISTRICT COLLECTOR
PATHANAMTHITTA.
2 TAHSILDAR (REVENUE RECOVERY)
ADOOR.
R1 BY GOVERNMENT PLEADER
OTHER PRESENT:
SMT. RAJI T.BHASKAR, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 24-06-2019, THE COURT ON 24-06-2019 DELIVERED THE
FOLLOWING:
W.P.(C) No.6458 of 2010
2
"CR"
JUDGMENT
Dated this the 20th day of December, 2019 The writ petition is filed challenging Exts.P5 and P6 notices issued under Sections 7 and 34 of the Revenue Recovery Act, for recovery of an amount of Rs.1,00,000/- due from late Sreedharan; father of the first petitioner and husband of the second petitioner. By Ext.P1 judgment, Sreedharan was convicted for the offence punishable under Section 55 (a) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default, to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, Sreedharan filed Crl.A.No.484 of 2003 before this Court, which culminated in Ext.P2 judgment dated 17.6.2009, confirming the conviction and modifying the sentence to simple W.P.(C) No.6458 of 2010 3 imprisonment for three months, fine of Rs.1,00,000/- and default sentence of one month. Sreedharan died on 13.7.2009. Exts.P5 and P6 notices were issued thereafter, seeking to recover the fine amount, if necessary, by bringing Sreedharan's properties to sale.
2. Heard Sri.Liju V. Stephen, learned Counsel for the petitioners and Smt. Raji T. Bhasker, learned Government Pleader.
3. The interesting and challenging question arising for consideration in this writ petition is the right, if any, of the State to realise the fine component of the sentence imposed on late Sreedharan from his property, which devolved upon the petitioners as per the registered Settlement Deed dated 26.12.1995 executed in favour of the second petitioner and Exts.P3 and P4 Sale Deeds dated 24.6.2006, in favour of the first petitioner.
W.P.(C) No.6458 of 20104
4. The learned Counsel for the petitioners raised a unique contention against realisation of the fine amount from the property, on the premise that law does not permit such course of action. In furtherance of this contention, the learned Counsel drew attention to Section 68 of the Abkari Act ('Act 1 of 1077'), Section 70 of the Indian Penal Code, Section 421 of the Code of Criminal Procedure and Clause 24 of the Kerala Interpretation and General Clauses Act, 1125, which are extracted hereunder:-
"Abkari Act
68. Provisions of Code of Criminal Procedure and Indian Penal Code applicable to offences committed under the Act. - The provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)], relating to execution, so far as the same applicable, and sections 67, 68 and 69 of the Indian Penal Code shall apply to all offences committed and to all persons punished under the provisions of this Act.
The Indian Penal Code "70. Fine leviable within six years, or during imprisonment--Death not to discharge property from liability.
The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to W.P.(C) No.6458 of 2010 5 imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts. The Code of Criminal Procedure
421. Warrant for levy of fine.
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both, of the defaulter: PROVIDED that, if the sentence directs that in default of the payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357.
(2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub- section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.W.P.(C) No.6458 of 2010 6
(3) Where the court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:
PROVIDED that no such warrant shall be executed by the arrest or detention in prison of the offender. Clause 24 of the Kerala Interpretation and General Clauses Act, 1125 (Kerala Act No.7 of 1125) "24. Recovery of fines - The provisions of the Penal Code for the time being in force relating to fines and the provisions of the Criminal Procedure Code for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to all fines imposed under any Act, rule or bye-law, unless the Act, rule or bye-law contains an express provision to the contrary."
5. The thrust of the contention is based on Section 68 of the Abkari Act. It is pointed out that Sections 67, 68 and 69 of the Indian Penal Code are made applicable to all offences committed and to all persons punished under the provisions of the Abkari Act, whereas no mention is made about Section
70. It is therefore contended that the only presumption possible is that Section 70 of the Indian Penal Code is W.P.(C) No.6458 of 2010 7 specifically excluded. The legal maxim "expressio unius est exclusio alterius" which means express mention of one thing implies exclusion of another, is pressed into service. The maxim "actio personalis moritur cum persona", meaning thereby that the offence dies with the offender is also projected. Reliance is placed on the following decisions:-
M.Veerappa v. Evelyn Sequeria and others [AIR 1988 SC 506], Commissioner of Customs (Import), Mumbai v.
Dilipkumar and Company and others [(2018) 9 SCC 1] and H.M.Treasury v. Harris [(1957) 2 All E R 455].
6. At first brush, Section 68 of the Abkari Act creates an impression of exclusion of Section 70 of the IPC, by reason of the specific inclusion of Sections 67, 68 and 69. A closer scrutiny of the Sections though, reveal a different picture.
Section 67 IPC deals with imprisonment for non-payment of fine when the offence is punishable with fine only. Sections W.P.(C) No.6458 of 2010 8 68 and 69 deal with termination of imprisonment imposed in default of payment of fine and termination on payment of proportional part of the fine. Therefore, Sections 67, 68, and 69 are provisions dealing with termination of the sentence of fine, either by undergoing the default sentence or by payment of the fine amount. As against those provisions, Section 70 provides for levy of fine or any part thereof which remains unpaid, even after the death of the offender. The defaulted fine amount being charged on the property of the defaulter, the sentence of fine does not get discharged on the death of the defaulter and can be levied from the property which, after the death of the defaulter would be legally liable for his debts. Hence, the maxim "actio personalis moritur cum persona" has no application when it comes to realisation of fine imposed as part of the sentence.
7. The different punishments for varied offence under W.P.(C) No.6458 of 2010 9 the Indian Penal Code are enumerated under Section 53 in the following manner:-
"53. Punishments The punishments to which offenders are liable under the provisions of this Code are-
First-Death;
Secondly - Imprisonment for life Thirdly-[omitted] Fourthly- Imprisonment, which is of two descriptions, namely:-
(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly- Forfeiture of property;
Sixthly-Fine."
Chapter XXXII of the Code of Criminal Procedure prescribes the various modes for execution of sentences. Section 421 therein, provides for recovery of fine, either by issuing a warrant for levy of the amount of fine by attachment and sale of any movable property belonging to the offender or/and by issuing a warrant to the Collector of the District authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both, of the offender. A conjoint reading of the relevant provisions of the IPC and W.P.(C) No.6458 of 2010 10 Cr.P.C exposit that, fine is one mode of punishment, the realisation of which is under Section 70 IPC by following the procedure prescribed under Section 421 Cr.P.C.
8. While considering the question as to whether mere non-mention of Section 70 of the IPC in Section 68 of the Abkari Act amounts to specific exclusion, one has to look at Clause 24 of the Kerala Interpretation and General Clauses Act, 1125 (Kerala Act No.7 of 1125), which is in pari materia with Section 25 of the General Clauses Act, 1125. A reading of Clause 24 leaves no room for doubt. Section 70 IPC would apply to fine imposed for an offence under the Abkari Act, as the Abkari Act does not contain an express provision to the contrary.
9. The paramount role of the General Clauses Act, in supplying the meaning of a word or a clause in an enactment, when there is doubt, is succinctly stated by the Apex Court in W.P.(C) No.6458 of 2010 11 Commissioner of Customs v. Dilipkumar, as under:-
"In all the Acts and Regulations, made either by Parliament or Legislature, the words and phrases as defined in the General Clauses Act and the principles of interpretation laid down in the General Clauses Act are to be necessarily kept in view. If while interpreting a statutory law, any doubt arises as to the meaning to be assigned to a word or a phrase or a clause used in an enactment and such word, phrase or clause is not specifically defined, it is legitimate and indeed mandatory to fall back on the General Clauses Act. Notwithstanding this, we should remember that when there is repugnancy or conflict as to the subject or context between the General Clauses Act and a statutory provision which falls for interpretation, the Court must necessarily refer to the provisions of the statute."
Based on the legal provisions and the precedents, the irresistible conclusion is that Section 70 IPC is applicable to the offences under the Abkari Act also and the fine amount due from a deceased defaulter can be realised by proceeding against his property.
10. Having held so, the next question is as to whether the transfer of the property by late Sreedharan in the name of the petitioners would inhibit the proceedings for recovery in accordance with the provisions of the Revenue Recovery Act. W.P.(C) No.6458 of 2010 12 The Kerala Revenue Recovery Act was enacted with the objective of consolidating the laws relating to the recovery of arrears of public revenue in the State of Kerala. Section 2 (j) of the Act defines "public revenue due on land" as the land revenue charge on the land, including all other taxes, fees and cesses on land, whether charged on land or not. As per Section 2(g) "land-holder" means the registered holder for the time being of any land and includes his legal representatives and assigns and any person who is, under the law for the time being in force, liable for payment of the public revenue due on the land held by him. Sections 7 and 34 provide for issue of demand notice for attachment and sale of movable and immovable property of the defaulter for realisation of the amount of the arrears of public revenue due from the defaulter.
11. In this context, it may be apposite to consider the W.P.(C) No.6458 of 2010 13 concept of 'Crown debt' on which the notion of 'public revenue due on land' is based. The common law doctrine of priority or precedents of Crown debts is that, where the Crown's right and that of a subject meet at one and the same time, the priority of the Crown is in general preferred. The common law doctrine of priority of State's debts has been recognised as the law applicable in British India before 1950 and hence, the doctrine has been treated as 'law in force' within the meaning of Article 372(1) of the Constitution of India. Therefore, the fine imposed by a criminal court, which is a debt due to the State from the convicted person, the non- payment of which renders him a defaulter, can, by virtue of the provisions of the Revenue Recovery Act, be realised from the legal representatives of the deceased defaulter, treating the defaulted fine amount to be public revenue due on the land held by the defaulter.
W.P.(C) No.6458 of 201014
12. On consideration of the authorities cited by the learned counsel for the petitioners, it is seen that H.M.Treasury v. Harris, is a Queen's Bench decision, which considered the entitlement for recovery of fines imposed on a person convicted of felony, who died while serving the sentence of imprisonment, from his personal representatives. The question was answered in the affirmative by holding that the Crown was entitled to recover the fine imposed on the deceased person because the fines imposed for felony were debts of record due to the Crown which the Crown could recover by process of law. The learned counsel for the petitioner drew my attention to the comments on H.M Treasury v. Harris published in the Criminal Law Review, doubting the correctness of the decision. The comment is as follows:-
"While the legal reason for the decision seem, with respect, to W.P.(C) No.6458 of 2010 15 be impeccable, it may be doubted whether it is wise as a matter of policy. As it was a case of first impression, it was in fact open to the Lord Chief Justice to decide it either way. The primary purpose of criminal sanction is punishment and a man cannot be punished after his death; why punish those entitled to his estate."
In M.Veerappa v. Evelyn Sequeria, the Supreme Court dilated on the maxim "actio personalis cum moritur persona" in the context of law of torts and held as follows:-
"The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong doer vide Rustomji Dorabji v. W.H. Nurse (AIR 1921 Mad 1) (supra) and Ratanlal v. Baboolal (AIR 1960 Madh Pra 200) (supra) as well as in those cases where a suit for damages for defamation, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiff's estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend]."
13. Coming to the facts of the case, Sreedharan is alleged W.P.(C) No.6458 of 2010 16 to have transferred 5 cents in the name of the second petitioner as per registered Settlement Deed dated 26.12.1995. No evidence regarding the transaction is produced in the writ petition. Exts. P3 and P4 evidence transfer of some extent of land belonging to the Sreedharan to the first petitioner. Ext.P1 judgment is dated 31.1.2003. By Ext.P2 judgment, the appellate court confirmed the conviction and retained the fine at Rs.1,00,000/-. The transaction in favour of the first petitioner being after 31.1.2003, is hit by Section 44(2) of the Revenue Recovery Act. Therefore, there is no interdiction in proceeding against the property of Sreedharan in the possession of the first petitioner. As regards the claim that 5 cents was transferred in the name of the second petitioner, as per Settlement Deed dated 26.12.1995, it is for the second petitioner to establish her title and raise objection against the revenue recovery W.P.(C) No.6458 of 2010 17 proceedings. If objection is raised before the first respondent within a period of one month from the date of receipt of a copy of this judgment, the same shall be considered and appropriate orders passed in accordance with law within a period of one month of receipt of the objection.
The writ petition is dismissed, but reserving the above liberty. No order as to costs.
Sd/-
V.G.ARUN JUDGE Scl/20.12.2019 W.P.(C) No.6458 of 2010 18 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN SC
NO.63/99 OF THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE (ADHOC) COURT - I,
PATHANAMTHITTA DATED 31.1.03.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN CRL.A. NO.484/03 DATED
17.6.2009.
EXHIBIT P3 TRUE COPY OF THE SALE DEED NO.913/06
DATED 24.6.06.
EXHIBIT P4 TRUE COPY OF THE SALE DEED NO.914/06
DATED 24.6.06.
EXHIBIT P5 TRUE COPY OF THE NOTICE NO.K2-2342/10
DATED 10.2.2010. WRONGLY SHOWN AS DATED
10.2.2009.
EXHIBIT P6 TRUE COPY OF THE NOTICE NO.K2-2342/10
DATED 16.2.2010.