High Court Kerala High Court

M.P.Augustine vs State Of Kerala Represented By Its on 16 June, 2010

Kerala High Court
M.P.Augustine vs State Of Kerala Represented By Its on 16 June, 2010
       

  

  

 
 
  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.
               - - - - - - - - - - - - - - - - - - - - - - -
         W.P.(C)No. 34079 of 2007 & 4014 of 2008
               - - - - - - - - - - - - - - - - - - - - - - -
           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/