IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34079 of 2007(F)
1. M.P.AUGUSTINE, C.NO.3452, BLOCK NO.1,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY ITS
... Respondent
2. THE ASSISTANT EXCISE COMMISSIONER
3. THE DISTRICT COLLECTOR, ERNAKULAM.
4. THE SPECIAL TAHSILDAR (REVENUE RECOVERY)
5. THE DEPUTY TAHSILDAR (REVENUE RECOVERY)
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :16/06/2010
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No. 34079 of 2007 & 4014 of 2008
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Dated this the 16th day of June, 2010
J U D G M E N T
These two cases are the fall out of the infamous Vypin
Liquor Tragedy which took the lives of many and blinded
many in 1982. In that tragedy which happened because of
the action of the petitioner in W.P.(C) No.34079/2007 and
others who supplied spurious liquor to consumers, several
consumers died and several lost their eyesight. The
petitioner in W.P.(C) No.34079/2007 was prosecuted and
imprisoned for his role in the tragedy. Subsequently the
question of payment of compensation to the victims of the
tragedy arose. The Government was directed to pay
compensation to the victims since the tragedy occurred
because of the negligence of the licensee and the abkari
officers. That question was considered by a Division Bench
of this court in W.A. No.1184/1993. In that writ appeal, by
judgment dated 02.07.2001, a Division Bench of this court
W.P.(C)No. 34079 of 2007 & 4014 of 2008
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directed the Government to recover the compensation so
paid/payable to victims, from the contractors and Excise
officers who were responsible for the tragedy. Thereafter
by Ext.P1, notice was issued to the petitioners for recovery
of the amount by proceeding against the properties
transferred by the petitioner in W.P.(C) No.34079/2007 to
the petitioners in the other who are his daughters by
invoking Section 44 (3) of the Kerala Revenue Recovery Act.
The petitioner in W.P.(C) No.34079/2007 had by Exts.P2 &
P3 documents dated 18.02.1985, bequeathed certain
properties to the petitioners in W.P.(C) No.4014/2008. By
Ext.P1 notice in both writ petitions, the Special Tahsildar
(Revenue Recovery) directed the petitioner to show cause
why those properties should not be proceeded against for
recovery of the amounts as directed in W.A. No.1184/1993
by invoking Section 44 (3) of the Kerala Revenue Recovery
Act. The petitioners challenge that notice in these writ
petitions.
W.P.(C)No. 34079 of 2007 & 4014 of 2008
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2. First of all, the petitioners would contend that
although Ext.P1 is only a show cause notice, a reading of
the same would show that, the same is issued as directed by
the Government. As is clear from Ext.P1 the Government
has already decided that this property is liable to be
proceeded against under Section 44 (3) of the Kerala
Revenue Recovery Act and Ext.P1 is only in execution of
that direction is the contention. Therefore according to the
petitioners, there is no point in suffering an adjudication
process before the Special Tahsildar in respect of that
notice in so far as the result is a foregone conclusion.
3. The petitioners contend that, until the Division
Bench passed judgment on 02.07.2001, directing recovery
of the compensation amount from the Abkari contractors
and Excise officers, the amount so directed to be recovered
had not become due and therefore the petitioner in W.P.(C)
No.34079/2007 was not a defaulter in respect of that
property on 18.02.1985 when he bequeathed the same to
the petitioners in W.P.(C) No.4014/2008. They would
W.P.(C)No. 34079 of 2007 & 4014 of 2008
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further submit that, in 1985 nobody had any inkling that in
2001 this court would decide to recover the compensation
amount from the petitioner in W.P.(C) No.34079/2007 and
therefore there is no reason even to suspect that the
transfer made on 18.02.1985 has been made with the
intention to defeat or delay the recovery of any arrears in
respect of which the petitioner in W.P.(C) No.34079/2007 is
a defaulter. Therefore according to the petitioner, Section
44 (3) is not attracted to the facts of this case at all and
therefore the properties covered by Exts.P2 & P3 cannot be
proceeded against by invoking Section 44 (3) of the Kerala
Revenue Recovery Act. The counsel for the petitioners
further points out that, as an abkari contractor he did not
have any dues as is evident from Ext.P8 produced in
W.P.(C) No.13299/2009, (which is being separately heard
and disposed of) wherein the Government themselves had
absolved the petitioner in W.P.(C) No.34079/2007 from any
liability in respect of his abkari license.
W.P.(C)No. 34079 of 2007 & 4014 of 2008
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4. A counter affidavit has been filed by the
4th respondent, in which the contention taken is that, the
tragedy which gave rise to the claim for compensation to
the victims arose in 1982 and therefore the compensation
must be deemed to have become due with effect from that
date and therefore the transfer made on 18.02.1985 comes
clearly within the mischief of Section 44 (3).
5. I have considered the rival contentions in detail.
Since the respondents have proceeded against the
petitioners in the two writ petitions under Section 44 (3), I
must consider the issues involved in accordance with the
provisions of that Section, which reads thus:
“Where a defaulter transfers immovable property to a near
relative or for grossly inadequate consideration after public
revenue due on any land from him has fallen in arrear, it shall
be presumed until the contrary is proved, that such transfer is
made with intent to defeat or delay the recovery of such arrear,
and the Collector or the authorised officer may, subject to the
order of a competent Court, proceed to recover such arrear of
public revenue by attachment and sale of the property so
transferred, as if such transfer has not taken place:
Provided that, before proceeding to attach such property,
the Collector or the authorised officer shall-
W.P.(C)No. 34079 of 2007 & 4014 of 2008
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(i) give the defaulter an opportunity of being heard;
and
(ii) record his reasons therefor in writing.”
6. Going by the said Section, I am of opinion that the
transfer of immovable property contemplated in that sub-
section should be by a “defaulter” before that property can
be proceeded against under Section 44 (3). Of course as
pointed out by the learned Government Pleader, it is for the
petitioners to prove that the transfer was not made with the
intention to defeat or delay the recovery of arrears. But
before the burden shifts to the petitioners, the respondents
should first prove that as on the date of transfer of
immovable property, the petitioner in W.P.(C)
No.34079/2007 was a defaulter. At first blush the
arguments of the learned Government Pleader would sound
the attractive in the sense that it is only because of the
tragedy which happened in 1982 the question of damage
and compensation arose. But I am of opinion that even then
the petitioner in W.P.(C) No.34079/2007 cannot be
regarded as a defaulter as on the date of transfer of the
W.P.(C)No. 34079 of 2007 & 4014 of 2008
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property. For the petitioner to become a defaulter there
should be first a demand which he defaults to pay. Here at
no point of time prior to 02.07.2001, when the Division
Bench pronounced the judgment, the question of recovery
of any amount from the petitioner in W.P.(C)
No.34079/2007 arose. In fact by no stretch of imagination
can it be assumed that as on 1985 he could have foreseen
the possibility of recovery of the compensation from him
and with the intention to defeat that possibility he has
executed Exts.P2 & P3 gift deeds. The respondents have no
case that the petitioner in W.P.(C) No.34079/2007 was a
defaulter in respect of any other amount also in his capacity
as an abkari contractor. That being so, I am satisfied that
in respect of this compensation amount, the petitioner in
W.P.(C) No.34079/2007 was not a defaulter coming within
the purview of Section 44 (3) of the Kerala Revenue
Recovery Act. That being so, those properties cannot be
proceeded against for recovery of amounts which became
due only with effect from 02.07.2001, when the Division
W.P.(C)No. 34079 of 2007 & 4014 of 2008
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Bench directed the recovery of the amounts from the abkari
contractors and the excise officers. Therefore Ext.P1 in
W.P.(C) No.4014/2008 which is also Ext.P1 in other writ
petition is hereby quashed. It is declared that for recovery
of the amounts in question, the properties described in
Exts.P2 & P3 in W.P.(C) No.4014/2008 cannot be proceeded
against. However, it is open to the respondents to recover
the same from the petitioner in W.P.(C) No.34079/2007
otherwise.
These writ petitions are allowed.
S. SIRI JAGAN
JUDGE
shg/