IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2832 of 2007()
1. CHINNAMMA SIMON,W/O.LATE MATHAI SIMON,
... Petitioner
2. SURESH SIMON,S/O.LATE MATHAI SIMON,
Vs
1. ADDITIONAL SALES-TAX OFFICER,CHENGANNUR.
... Respondent
2. THE APPELLATE ASSISTANT COMMISSIONER.
3. THE DISTRICT COLLECTOR,PATHANAMTHITTA.
4. THE TAHSILDAR (R.R),KOZHENCHERRY
5. THE VILLAGE OFFICER,NARANGANAM VILLAGE
For Petitioner :SRI.LIJU.V.STEPHEN
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.M.JOSEPH
Dated :04/12/2007
O R D E R
H.L. DATTU, CJ. & K. M. JOSEPH, J.
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W.A. NO. 2832 OF 2007
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Dated this the 4th December, 2007
JUDGMENT
H.L. DATTU, CJ.
Questioning the correctness or otherwise of the Order passed by the learned
Single Judge in W.P.(C). No.9782/07 dated 22.3.2007, the petitioners are before us
in this Writ Appeal.
2. The learned Single Judge, by the impugned order, has only directed the
petitioners to execute the Decree said to have been passed by the Munsiff Court,
Pathanamthitta in OS No.92/03.
3. Petitioners were before this Court in O.P. No.9052/03. In the said Writ
Petition, the primary question was the revenue recovery notices issued by the
respondent Authorities (Exts.P2 and P2(a)), for realisation of the sales tax due under
the Kerala General Sales Tax Act. The learned Single Judge by the Order dated
11.8.2005 had disposed of the Writ Petition and in that, had stated as under:
” Petitioners are challenging the recovery
proceedings initiated for recovery of arrears of sales tax due from
the husband of the 1st petitioner. Government Pleader on
instructions submitted that the late husband of the 1st petitioner
during his life time conducted business which led to assessments,
and appeals were dismissed. Thereafter, it appears that he had
filed civil suits, result of which is unknown. In the circumstances,
petitioners are not entitled to challenge the recovery proceedings
for recovery of arrears of sales tax from the estate of the
deceased, whether it is devolved on them or not. Recovery
against defaulter’s property is permissible even after his death by
virtue of Section 20 of the KGST Act. However, following the
amnesty scheme of 2004 not availed by petitioners, petitioners are
given time till 15.11.2005 to clear the arrears with 40% interest
and if payment is made 60% interest will stand waived. If liability
WA NO.2832/07 2
is not settled, recovery proceedings will be continued against the
property of the deceased whether it is devolved on the petitioners
or transferred to any one person. However, the petitioners and
other claimants can file claim petition under Section 46 of the
Revenue Recovery Act which the Recovery Authority will dispose
of with reference to statutory provisions and after hearing the
claimants. The Original Petition is disposed of as above. No
costs.”
4. Before the trial court, for reasons best known, the appellant/petitioners did
not bring to the notice of the court the Order passed in O.P. No.9052/03. That may
be the reason for the trial court in granting the relief sought for by the plaintiffs in the
Suit.
5. In the present Writ Petition filed by the petitioners, the question involved is
the very same revenue recovery notices which were the subject matter in O.P.
No.9052/03. In our view, for the very same cause of action, the writ petitioners could
not have approached this Court by filing a separate Writ Petition. The Writ Petition
so filed by the petitioners is hit by the principles of res judicata. In that view of the
matter, while rejecting the Writ Appeal, we confirm the orders passed by the learned
Single Judge, though on a different footing.
Ordered accordingly.
H.L. DATTU,
CHIEF JUSTICE
K.M. JOSEPH,
JUDGE
kbk.