IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 666 of 2008()
1. M.V.JOSE,MADATHIPARAMBIL HOUSE,
... Petitioner
Vs
1. KAMALAKSHI,W/O.LATE VIJAYAN,
... Respondent
2. VINU RAJ,S/O.LATE VIJAYAN,-DO-
3. VIJAYAMMA,D/O.LATE VIJAYAN,-DO-
4. STATE OF KERALA REP.BY THE SPECIAL
5. DISSTRICT COLLECTOR,ERNAKULAM,
6. SPECIAL TAHSILDAR (R.R) FORT KOCHI,
7. THE VILLAGE OFFICER,NAYARAMBALAM,
8. THE ASSISTANT EXCISE COMMISSIONER,
9. SUBRAMANIAN,S/O.LATE VIJAYAN,
10. K.V.JAYAN,S/O.LATE VIJAYAN,
For Petitioner :SRI.DINESH R.SHENOY
For Respondent :SRI.P.A.ABDUL JABBAR
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :23/07/2008
O R D E R
H.L.Dattu, C.J. & A.K.Basheer, J.
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W.A.Nos.666 of 2008 & 665 of 2008
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Dated, this the 23rd day of July, 2008
JUDGMENT
H.L.Dattu,C.J.
These writ appeals are directed against the order passed by
the learned Single Judge in W.P.(C) Nos.4306/07 and 28273/2007.
2. The legal representatives of one late K.K.Vijayan are
before this Court in W.P.(C).No.4306 of 2007.
3. In the writ petition filed, the reliefs that are sought for by
the petitioners are, firstly, to call for the records leading to
Ext.P7 (revenue recovery notice) and then issue a writ in the nature of
certiorari to quash those proceedings, secondly, for a direction to the 2nd
respondent to accept from the petitioners the remittance of 1/4th of the
total dues towards Kist arrears on behalf of late K.K.Vijayan in pursuance
of Exhibit P5 direction without any further interest and, lastly, to permit
the petitioners, along with other legal heirs of late Vijayan, to sell one of
the properties scheduled in Exhibit P7 notice and to pay up the dues of
late Vijayan payable to the Government towards Kist amount.
4. Even according to the respondents/State Government, the
total amount that is due from late K.K.Vijayan and now the legal
representatives who have come on record, is more than Rupees sixty lakhs
W.A.Nos.666 & 665 of 2008
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and the same is pending from last few decades. Since the Abkari dues
were not paid by late Vijayan and after his death by his legal
representatives, the respondents have initiated revenue recovery
proceedings. Pursuant to those proceedings, the properties of the legal
representatives of late K.K.Vijayan is brought to sale. The Revenue
Recovery Officer has conducted the public auction of three items of
properties noticed in Exhibit P7. The properties were sold on 11.1.2007.
The 6th respondent is the successful bidder. Pursuant to the conditions
attached to the auction notice, the 6th respondent has deposited 15% of the
bid amount on 11.1.2007 and the balance of 85% of the amount on
8.2.2007.
5. The petitioners were fully aware of the auction sale that
was conducted and the confirmation of sale that was made in favour of
the 6th respondent. In spite of it, the petitioners had only questioned the
revenue recovery notice (Exhibit P7) issued by the Tahsildar to recover
the amounts due towards the Abkari dues. Since the petitioners had
suppressed the material facts and since they did not approach this Court
with clear heart, mind and hands, that itself would disentitle them in
getting the extra ordinary and discretionary relief of this court. Be that as
it may.
6. Since the properties that were sold was not confirmed by
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the authorities under the Revenue Recovery Act, the 6th respondent was
constrained to file W.P.(C).No.28273 of 2007.
7. The learned Single Judge has disposed of both the writ
petitions. While disposing of the writ petition filed by the legal
representatives of late K.K.Vijayan, the learned Single Judge has
observed, that by Exhibit P5 communication, certain reliefs were granted
to one of the partners of the firm and therefore, late K.K.Vijayan is also
entitled to such relief. The reasoning of the learned Single Judge is that,
Exhibit P5 communication ought to have been taken note of by the State
Government and the same reliefs should have been also given to the legal
representatives of late K.K.Vijayan and, therefore, till such time no
further steps need to be taken by the authorities to confirm the sale in
favour of the 6th respondent.
8. In order to appreciate the reasoning of the learned Single
Judge, in our view, it would be appropriate to extract, in extenso, Exhibit
P5 communication issued by the State Government. It is as under:
“GOVERNMENT OF KERALA
Revenue (S) Department,
Thiruvananthapuram
No.57894/s1/01/RD Dated: 29.12.2001From
The Secretary to Government.
W.A.Nos.666 & 665 of 2008
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To
Shri.K.K.Vijayan,
Kaithavalappil Veedu,
Nayarambalam, Kochi
Ernakulam.
Sir,
Sub: RR – Kist arrears – request to accept < of the
total dues – reg.
Ref: 1. Your petition dt.19.1.2000 addressed to the
Secretary to Government, Revenue
Department.
2. Your petition dt.1.6.2001 addressed to the
Minister (Rev).
—-
I am to invite your attentions to the references cited
and to inform that the District Collector, Ernakulam has
instructions to accept from you the remittance of < of the
total dues towards Kist arrears. In this connection I am
also to inform you that all the defaulters will be
individually and collectively responsible for the
outstanding dues, provided the arrears could not be
realised in full.
Yours faithfully,
B.Raveendran Nair
Under Secretary
For Secretary to Government”.
9. The communication of the State Government is dated
29.12.2001. In that, it is stated, that, the District Collector, Ernakulam has
instructions to accept from late K.K.Vijayan the remittance of 1/4th of the
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total dues towards Kist arrears. It is also stated that Vijayan and all the
other partners of the firm, who are defaulters, are individually and
collectively responsible for the outstanding dues, provided the arrears
could not be realised in full.
10. It is the case of Vijayan and thereafter his legal
representatives that the said communication was not received by them and
that document came to light only in the statement of objections filed by
the respondents and, therefore, they must be given an opportunity to
request the State Government to extend the benefit of Ext.P5
communication and allow them to deposit the amount stated in the
communication.
11. Ext.P5 communication is of the year 2001. If, for any
reason, the said document was available, the legal representatives of late
K.K.Vijayan, who had approached this Court earlier on a number of
occasions, would have produced the same and would have submitted to
this Court to grant them the benefit of that communication, so that they
could pay up the arrears of Abkari dues. That was not done by them at
any point of time. It so happens that at every stage whenever proceedings
are initiated to recover the Abkari dues, one or the other legal
representatives of late K.K.Vijayan would approach this Court on one
pretext or the other, and obtain an interim order and, thereby, effectively
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postpone the recovery of Abkari dues from late K.K.Vijayan.
12. In our view, since the communication was of the year
2001, and since nothing was done by Sri.Vijayan and thereafter by his
legal representatives, in our view, petitioners were disentitled for
discretionary relief of this court. Further, petitioners cannot plead
non-communication of Ext.P5 communication at this belated stage. It is
understandable if the respondents were initiating recovery proceedings
against the petitioners alone. Sri.Vijayan was one of the partners of a firm
which had conducted the abkari business. Respondents were trying to
recover the amounts due from all the partners of the firm. If any one of
the partners had taken advantage of Ext.P5 communication, nothing
prevented late Vijayan and thereafter his legal representatives in taking
steps to comply with Ext.P5 communication. In view of all this, in our
view, there was no need or necessity for the learned Single Judge to have
directed the State Government to consider Ext.P5 and give relief to the
petitioners.
13. Even otherwise also, the Revenue Recovery Officers
have initiated proceedings and they have sold the properties in auction
and in the absence of a challenge to those proceedings, the learned Single
Judge ought not have granted the relief sought for by the petitioners in the
writ petition.
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14. It is relevant, at this stage, to state that the sale that was
made in favour of the 6th respondent was questioned by one of the legal
representatives of late K.K.Vijayan before the District Collector as
provided under the Act and their claim is also rejected. Therefore, there
is no impediment for the Revenue Recovery Officer to confirm the sale in
favour of the the 6th respondent.
15. In view of the above discussion, in our view, the
learned Single Judge was not justified in granting the relief sought for by
the petitioners in W.P.(C).No.4306 of 2007. Accordingly, the order
passed by the learned Single Judge in that writ petition requires to be set
aside. Consequently, the prayer made by the petitioner in W.P.(C).
No.28273 of 2007 requires to be granted.
16. Accordingly, we pass the following:
Order
(i) W.A.No.666 of 2008, arising out of the orders passed by
the learned Single Judge in W.P.(C).No.4306 of 2007, is
allowed. The orders passed by the learned Single Judge
is set aside.
(ii) W.A.No.665 of 2008, arising out of the orders passed by
the learned Single Judge in W.P.(C).No.28273 of 2007,
is allowed and the impugned order is set aside.
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(iii) Now, a direction is issued to Special Tahsildar (R.R.),
Fort Kochi, to execute the sale deed in favour of the
appellant – M.V.Jose, S/o.Varghese – as expeditiously as
possible, at any rate, in one month’s time from the date
of receipt of a copy of this court’s order.
(iv) In view of the orders passed in the Writ Appeals, all
pending interlocutory applications are closed.
Ordered accordingly.
H.L.Dattu
Chief Justice
A.K.Basheer
vku/dk Judge