IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23168 of 2010(U)
1. SRI.M.KASIM, AGED 72 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DEPUTY TAHSILDAR, REVENUE RECOVERY,
For Petitioner :SRI.C.AJITH KUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :30/08/2010
O R D E R
C.K. ABDUL REHIM, J
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WP(C) NO. 23168 OF 2010
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Dated this the 30th day of August, 2010
JUDGMENT
The petitioner is challenging Ext.P1 demand notice issued under the
provisions of the Kerala Revenue Recovery Act, for realisation of a sum of
Rs.44,160/-. According to the petitioner, before issuing Ext.P1, he has not
been served with any notice of demand and that he was totally unaware
about the nature of the amount sought to be recovered. On behalf of the
second respondent, a statement was filed which revealed that the
petitioner while working as Tahsildar, Karunagappally, was personally
implicated in a suit filed by a person claiming damages on account of
some unauthorised official actions, as second defendant. The said suit,
O.S. No. 228/1995 was decreed by the Additional Sub Court, Kollam,
holding that the defendants are liable for payment of Rs.96,000/- along
with interest to the plaintiff. Government is the first defendant in the suit, in
which Ext.P1 judgment and decree was passed. It is stated that the
defendants have taken up the decree in appeal before this Court in RFA
460/2003, which was unsuccessful.
2. It is further mentioned in the statement when revenue
recovery steps were initiated by the Government against co-defendants
in the suit, WP(C) No. 10964/2007 was filed by them before this Court and
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this Court had restrained such action, clarifying that only if the Government
discharges the liability under the decree it will be open to take any steps
against other defendants. It is further stated that after satisfying the decree,
the Government initiated proceedings to recover the amount from all the
co-defendants on a proportionate basis. One of the co-defendants again
challenged the recovery steps in WP(C) No. 1179/2010. Annexure R2(c) is
the judgment in that Writ Petition. This Court, referring to judgment in WP
(C) No. 10964/2007, held that the Government having satisfied liability
under the decree is very much entitled to get the due amount recovered
from the petitioner therein. It is observed that by virtue of the joint and
several liability created under the decree, the petitioner therein become a
debtor to the Government and in such circumstance, the Government is
justified in resorting to machinery under the Kerala Revenue Recovery Act
for realising such amounts.
3. The petitioner had filed a reply affidavit narrating facts leading
to filing of the civil suit and contending that the petitioner was not actually
liable for payment of damages, which is decreed in the civil suit. It is also
contended that the petitioner was not having proper notice with respect to
the civil suit as well as with respect to the appeal filed before this Court. I
am afraid, I cannot consider such contention in this Writ Petition, since the
decree has already attained finality. The petitioner by name was implicated
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as defendant in the suit as well as in the appeal and as such the decree is
binding on him. The decree cannot be reviewed or reconsidered in this Writ
Petition. If the petitioner has got any case that either the decree in the civil
suit or the judgment in the appeal was happened to be issued without
notice to him, his remedy lies elsewhere.
4. Having considered nature of the liability as well as Annexure
R2(c) judgment passed by this Court, I am of the opinion that the dispute
raised against the liability is un-sustainable. However, it is noticed that
before initiating the steps for revenue recovery, the requisitioning authority,
who is the Tahsildar, Karunagappally, has not raised any demand against
the petitioner. As rightly contended by learned counsel for the petitioner the
judgments in WP(C) No.10964/2007 or WP(C) 1179/2010 are not binding
on the petitioner as he was not a party to those proceedings. I am of the
opinion that the petitioner should be provided with an opportunity to raise
objections if any available against the liability, before proceeding with the
recovery steps.
5. Under such circumstance, the petitioner can raise objections
against the liability fixed upon him in this regard. If the petitioner makes any
such objection before the Tahsildar, Karunagappally, within a period of two
weeks from today, the same shall be considered and a speaking order
need be issued on the same. The recovery steps initiated pursuant to the
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impugned notice shall be kept in abeyance until such proceedings is
finalized. Needless to mention that amount if any paid by the petitioner will
be appropriated subject to decision taken on the basis of such objections to
be submitted.
The Writ Petition is disposed of as above.
C.K. ABDUL REHIM
JUDGE
dnc