Kerala High Court
Mariyamma vs State Of Kerala on 17 January, 2019
Equivalent citations: AIRONLINE 2019 KER 1156
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY ,THE 17TH DAY OF JANUARY 2019 / 27TH POUSHA, 1940
WP(C).No. 22819 of 2018
PETITIONER:
MARIYAMMA
AGED 62 YEARS, S/O.CHACKO, KALEELAZHIKATHU
VEEDU,THRIPPILAZHIKOM MURI, KAREEPRA
VILLAGE,KOTTARAKKARA TALUK, KOLLAM DISTRICT.
BY ADV. SRI.K.V.ANIL KUMAR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,DEPARTMENT
OF LOCAL SELF GOVERNMENT INSTITUTIONS,SECRETARIAT,
THIRUVANANTHAPURAM,
PIN - 695 001.
2 THE DISTRICT COLLECTOR
KOLLAM DISTRICT, PIN - 691 001.
3 DEPUTY THAHASILDAR (RR)
KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN - 691 506.
4 THE SECRETARY
PERAYAM GRAMA PANCHAYATH, MULAVANA P.O.,KOLLAM
DISTRICT, PIN - 691 503.
5 VILLAGE OFFICER
KAREEPRA VILLAGE OFFICE, KOTTARAKKARA TALUK,
KOLLAM DISTRICT, PIN - 691 505.
R1 TO R3 & R5 BY SRI.PAUL ABRAHAM VAKKANAL,
GOVERNMENT PLEADER
R4 BY ADV. SRI.NOBEL RAJU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 22819 of 2018 2
C.R.
J U D G M E N T
This writ petition is filed by the petitioner seeking to quash Ext.P4 revenue recovery proceedings initiated under sections 34 and 7 of the Kerala Revenue Recovery Act. Brief Material facts for the disposal of the writ petition are as follows;
2. Petitioner is a retired employee of the Local Self Government Department. Grievance of the petitioner is that, on the request of the 4 th respondent Panchayat, 3rd respondent has issued demand notice against the petitioner to recover an amount of Rs.1,29,878/- under section 34 of the Kerala Revenue Recovery Act. During the period 1999-2000, 2004 and 2006 - 2007, petitioner was working as Village Extension Officer and Implementation Officer in the office of the 4th respondent. During 1999-2000 a pilot project for 'Janakeeya Paarppida Padhathi' was implemented all over the Panchayat. As per the project, 50 beneficiaries were selected through Gramasabha and accordingly a list was published. Petitioner was the Implementation Officer of the above WP(C).No. 22819 of 2018 3 said project. On 1.7.2000, the Panchayat Committee took a decision and drawn up a seniority list of beneficiaries for the said project. In the decision, the Committee included the name of one Joseph Augustine, Sreevilasm, Puthen Veedu, Koduvila as the beneficiary of ward No.10, but the above said person was not included in the list of Gramasabha. Petitioner informed the difficulty to include the name of the above said person to the Committee. At that time, the Committee informed the petitioner that, it is a printing mistake and the Committee discussed the issue and took a decision to include the name of the said person in the list and hence issued a copy of decision to the petitioner also. It was learned that, the child of Joseph Augustine, is physically disabled and he had no residence of his own. When the petitioner informed his difficulty, 4th respondent Panchayat Committee has given a copy of decision taken on 1.7.2000 by including the name of the aforesaid person as a beneficiary, evident from Ext.P1. As per the above decision, Rs.31,500/- was given to the said person for construction of residential building.
3. While so, during the audit of 1999-2000 WP(C).No. 22819 of 2018 4 conducted by the Local Fund Audit Department, objection was raised against the amount given to Joseph Augustine stating that by mistake his name was included in the beneficiary list. Thereupon, petitioner has brought the said issue to the notice of the Panchayat Committee and they informed the petitioner that it was only the objection made by the auditors by mistake and they will take necessary steps to rectify the same.
4. Anyhow till the retirement of the petitioner in the year 2012, no action was taken against the petitioner. However, after 4 years of retirement, petitioner came to know that 4th respondent initiated steps to recover the above said amount against the petitioner by way of revenue recovery proceedings, on the reason that, audit objections still exists. The prime case projected by the petitioner is that, the recovery made against the petitioner is barred under Law of Limitation prescribed as per the provisions of section 243 of Kerala Panchayat Raj Act, 1994. It is also submitted that, recovery proceedings are initiated against the petitioner after 18 years of implementation of the project. Petitioner therefore, WP(C).No. 22819 of 2018 5 seeks to quash Ext.P4 notice issued under Kerala Revenue Recovery Act.
5.I have heard learned counsel for petitioner, learned Government Pleader as well as learned Standing Counsel appearing for Panchayat and perused the pleadings and documents on record.
6. The discussion made above would make it clear that, the predominant contention advanced by Learned counsel for petitioner is that, the recovery initiated as per Ext.P4 notice under the Kerala Revenue Recovery Act is barred under the limitation prescribed under section 243 of Act, 1994. Section 243 deals with limitation for recovery of dues which read thus:
"243. Limitation for recovery of dues:-(1) No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any tax or other sum due to a Panchayat under this Act or any rule or bye-law, or order made under it after the expiration of a period of three years from the date on which the distraint might first have been made, a suit might first have been instituted or the prosecution might first have been commenced, as the case may be, in respect or such tax or sum:[Provided that in the case of assessment under sub-section (2) the above said period of three years shall be computed WP(C).No. 22819 of 2018 6 from the date on which destraint, suit or prosecution might first have been made, instituted or commenced, as the case may be, after making such assessment.
(2) Notwithstanding anything contrary to this contained in this Act or the rules made there under, where for any reason, a person liable to pay any tax or fees leviable under this Act has escaped assessment, the Secretary may at any time within four years from the date on which such tax should have been assessed, serve on him a notice assessing the tax or fee due and demand the payment within fifteen days from the date of serving such notice and thereupon the provisions of this Act and the rules made there under shall apply as if the assessment of such tax or fee was made in time.
(3) Where any tax or other amount due to a panchayat has been barred by limitation under sub-section (1), due to the default of taking steps at the appropriate time and it is found in a lawful enquiry that it was lost due to the default of any officer or offices, the amount so lost to the panchayat shall be realised with twelve percent interest thereon from such officer or officers.]
7. It is an admitted fact that, no recovery is initiated against the petitioner within the time period prescribed under section 243. There is no case also for the Panchayat that, any requisition was made by the Panchayat under section 69(2) of the Kerala WP(C).No. 22819 of 2018 7 Revenue Recovery Act within the period prescribed under law. On a perusal of Ext.P4 demand notice under sections 34 and 7 of Kerala Revenue Recovery Act, it is quite evident that requisition number is 2018/2173/02. Therefore, it can only be presumed that, the requisition was forwarded under section 69(2) during the year 2018. It is true as per section 69(2) of the KRR Act, on issuance of requisition, the proceedings start, which read thus:
"69. Procedure for recovery of public revenue due on land when defaulter or surety resides outside the district and for the recovery of dues other than public revenue dues on land (1)* * * * * * * * * * * * * * * * * * * * * * * * * * (2): When any amount, other than public revenue due on land, which is recoverable under this Act, is due, the officer charged with its realisation may send to the Collector of the district in which the defaulter or his surety resides or holds property a written requisition in the prescribed form, duly verified, and certified by him."
This question was also considered by the Apex Court in State of Kerala vs. V.R.Kalyanikutty [(1999)3 SCC 657] and has held so. It is an admitted fact that, the project was of the year 2000 and petitioner has WP(C).No. 22819 of 2018 8 retired from the service during the year 2012. Therefore, looking at any angle, I am of the considered view that, the recovery proceedings is barred under Law of Limitation and therefore, petitioner is entitled to succeed in the writ petition. Accordingly the writ petition is allowed and Ext.P4 series demand notices issued under sections 34 and 7 of the Kerala Revenue Recovery Act will stand quashed.
Sd/-
smv SHAJI P.CHALY
17.1.2019
JUDGE
WP(C).No. 22819 of 2018 9
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1: A TRUE COPY OF THE DECISION NO.I(1) DATED
01/07/2000 OF THE PANCHAYATH COMMITTEE. EXHIBIT P2: A TRUE COPY OF THE REQUEST DATED 21/03/2016 BEFORE THE 4TH RESPONDENT.
EXHIBIT P3: A TRUE COPY OF THE DECISION TAKEN BY THE PANCHAYATH COMMITTEE DATED 21/03/2016. EXHIBIT P4: A TRUE COPY OF THE DEMAND NOTICE DATED 02/03/2018 ISSUED BY THE 3RD RESPONDENT.