Kerala High Court
K.P. Janaki Amma And Ors. vs State Of Kerala And Ors. on 19 February, 2001
Equivalent citations: [2001]123STC457(KER)
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
JUDGMENT M.R. Hariharan Nair, J.
1. The petitioners in all these cases are the same. The respondents are also the same. The reliefs prayed for in the three original petitions relate to maintainability of revenue recovery proceedings initiated against the immovable properties of the petitioners having an extent of two acres. In the circumstances, these original petitions are being disposed of through a common judgment.
2. In O.P. No. 21684 of 1997 what is under challenge is the revenue recovery proceedings on the aforesaid property for recovery of arrears of sales tax accrued due in respect of a business by name "Plywood House", Aluva, which was being conducted by one Mr. K.G. Chandran, who is no more now. He was son of 1st petitioner and brother of petitioners 2 and 3. The aforesaid original petition relates to the arrears of sales tax in respect of assessment years 1985-86 and 1986-87.
3. O.P. No. 26101 of 1998 relates to the arrears of sales tax in respect of assessment years 1992-93 and 1993-94, O.P. No. 13426 of 2000 relates to the sales tax due in respect of assessment years 1989-90, 1990-91 and 1991-92.
4. There is one common feature that is relevant in all the three original petitions and that is the contention of the 1st petitioner that she was never a partner of the business in question. But according to the respondents, she has executed all relevant documents, which were produced before the tax authorities by her son, K.G. Chandran, along with the partnership deed concerned and these documents clinchingly show that the 1st petitioner was also a partner of the firm and as such liable for the entire arrears in question.
5. On the other hand, the contention of the 1st petitioner is that her signature was forged in the documents concerned and that her mode of signature actually is different from that appearing in relevant forms produced before the sales tax authorities. In view of the above contention and also considering the bar with regard to the maintainability of a suit in respect of sales tax arrears and revenue recovery dues, the question will have to be worked out by the authorities, who are now proceeding with the revenue recovery proceedings against the property.
6. The petitioners 2 and 3 claim that their deceased brother K.G. Chandran had only joint rights over the property along with their mother, who got the same in partition of the year 1974 which is produced as exhibit R3(e) in O.P. No. 21684 of 1997 ; that subsequently the 1st petitioner executed a settlement deed in the year 1991 in favour of her daughters (petitioners 2 and 3) and that thereupon K.G. Chandran conveyed his joint right over the property in favour of petitioners 2 and 3 through a document of the year 1994. Though the documents of 1991 and 1994 aforementioned are not produced before court, it is seen that the contention was raised before the revenue recovery authority through exhibits P1 and P2 objections filed before the District Collector, pursuant to the demand notice served On the 1st petitioner, The said objections were disposed of by the District Collector through a cryptic order, which is produced as exhibit P3 in O.P. No. 13426 of 2000. The order is not speaking in nature and the contentions were not dealt with in detail. Challenging the dismissal of the objections through exhibit P3, the petitioners jointly filed exhibit P4 revision before the Commissioner for Land Revenue under Section 83 of the Kerala Revenue Recovery Act, which was disposed of as per exhibit P10 which is produced along with C.M.P. No. 42166 of 2000 in O.P. No. 13426 of 2000. On a consideration of the contentions the Commissioner passed the following order :
"It is seen that the procedure under Section 34(2) has not been complied with by the Tahsildar, Talappilly. There is violation of procedure and hence the case is remanded to District Collector, Thrissur, for fresh disposal."
7. The grievance of the petitioners in O.P. No. 13426 of 2000 is that in spite of specific remand as above, the District Collector did not dispose of the case and instead the Tahsildar himself disposed of the matter by exhibit P13 order which is produced along with C.M.P. No. 8368 of 2001.
8. The learned counsel for the petitioners relied on the decision in Government of Andhra Pradesh v. Gudepu Sailoo AIR 2000 SC 2297 in support of the contention that when a matter is remitted to a particular authority, he himself is bound to dispose it of and that disposal of the matter by another authority cannot be taken as valid. That was not a case of similar facts. That was a case where a writ of mandamus was issued by the High Court to the District Collector and an order was passed in the matter not by the District Collector but by the District Revenue Officer. The court found that in the circumstances the order is bad. The difference in the present case is that the direction was not given by any court through any writ of mandamus; but was given by a revenue authority to one of the subordinates. The District Collector had already exercised his power under Section 34 to authorise the Tahsildar to dispose of the matter and it was in this background that exhibit P13 was passed. Hence, the petitioners cannot take shelter under the decision aforementioned to contend that exhibit P13 is bad.
9. Exhibit P13 is subject to the revisional jurisdiction of the Commissioner under Section 83 of the Kerala Revenue Recovery Act. The petitioners thus have a statutory remedy to challenge exhibit P13 and viewed from that perspective, I do not think it proper for this Court to intervene in the matter. The petitioners have to work out their remedy before the authority under Section 83 of the Act. At the same time, it is necessary that the disputed aspects raised in these three original petitions have to be gone into by the proper authority.
10. In these circumstances, the Original Petition No. 13426 of 2000 is disposed of with the following directions :
(i) The petitioners are left at liberty to file a revision challenging exhibit P13 order in O.P. No. 13426 of 2000 before the Commissioner. While considering the question of limitation, the said authority will take into account the fact that these original petitions were pending before this Court and that the questions to be raised in the revision were actually presented before this Court and pending here till today.
(ii) Opportunity will be given to the petitioners to produce before the Commissioner the settlement deed of 1991, the conveyance executed by K.G. Chandran in the year 1994 and also any other relevant documents.
(iii) While disposing of the prospective revision the Commissioner will issue notice to the petitioners in these original petitions.
11. In O.P. No. 21684 of 1997 the petitioners' grievance is that exhibits P1 to P3 and P5 representations made to the District Collector remain undisposed of. There will be a direction to the District Collector, Trichur, who is the 2nd respondent in the original petition, to dispose of the said representations, if not already disposed of, through speaking order to be passed within a period of one month from this date, after notice to all the petitioners and after affording opportunity to be heard in person. If any of the above representations have already been disposed of, the District Collector will serve copy thereof on the petitioners within the aforesaid period.
12. In O.P. No. 26101 of 1998 the grievance of the petitioners is that the Tahsildar, who is the 3rd respondent in the original petition, has not acted upon exhibits P5 and P6 representations. There will be a direction to the 3rd respondent to dispose of the said representations, if not already disposed of, through speaking order, after notice to all the petitioners and after affording opportunity to be heard in person, within a period of one month from the date on which a copy of this judgment is produced before him. If any of these representations have already been disposed of, the 3rd respondent will serve copy thereof on the petitioners within the aforesaid period.
13. It is an admitted fact that pursuant to the revenue recovery proceedings, the building, which had been occupied by the 1st petitioner and available in the attached property, was closed and sealed by the revenue authorities forcing the 82-year old-lst petitioner to take refuge under her relatives. The Revenue Recovery Act does not appear to contemplate any such step at this stage, when the property has not even been brought to sale. Section 36 of the Kerala Revenue Recovery Act states as follows :
"36. Mode of attachment.---(1) The attachment shall be effected by affixing a notice thereof to some conspicuous part of the immovable property to be attached and by serving a copy on the defaulter. The notice of attachment shall also be published. The notice shall specify the name of the defaulter, the amount of arrear of public revenue due on land, the interest thereon, the date on which such arrear became due and such other particulars as may be prescribed, and shall set forth that unless the arrear with the interest thereon and the cost of process be paid within the date therein mentioned, the immovable property concerned will be brought to sale in due course of law.
(2) The attachment of any immovable property shall become effective from the date on which the notice under Sub-section (1) was affixed on the property."
14. As clear from the above provision, the attachment is to be brought into effect by affixing notice thereof in a conspicuous part of the property and by serving copy on the defaulter. In the instant case, because of the documents allegedly executed by the original assessee such notice will have to be served on all the petitioners. In the absence of any provision available in the Act justifying sealing and possessing of the building, there will be a direction to the fourth respondent in O.P. No. 13426 of 2000 to re-deliver or permit possession of the building by the first petitioner for the time being.
15. The revision, if any, from exhibit P13 order in O.P. No. 13426 of 2000 will be filed within a period of three weeks from today. The respondents will maintain status quo regarding the revenue recovery proceedings (except in the matter of putting back the first petitioner in possession of the building) for a period of one month from this date. In other words, notwithstanding the order for maintenance of status quo, the first petitioner will be given back possession of the building forthwith.
Order on C.M.P. Nos. 21890 of 2000, 42166 of 2000 and 8368 of 2001 and 21889 of 2000 in O.P. No. 13426 of 2000 dismissed.
Order on C.M.P. No. 38949 of 1997 in O.P. No. 21684 of 1997 dismissed.
Order on C.M.P. Nos. 45647 and 45646 of 1998 in O.P. No. 26101 of 1998 dismissed.