B.A. AHAMMED and others v. Sales Tax Officer, Hosdurg, Kasaragod District and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **MONDAY, THE 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933** ## **WPC.No. 10214 of 2006 (N) -------------------------------------** ## **PETITIONER(S):** - **------------------------** **1. B.A. AHAMMED, S/o. ABOOBACKER, RESIDING AT MUTTATHODY, ALAMPADY POST, KASARAGOD.** - **ADDL. PETITIONERS IMPLEADED** **2. AYSHABI, W/o. AHAMMED, KARUMANAM HOUSE, ERMALAM P.O., ALAMPADY, KASARAGOD.** **3. BEEFATHIMA W/o B.S. ABDULLAKUNHI, HANNATH MANZIL, ADIYADUKKA P.O., PERADALA, KASARAGOD.** **4. ABDUL HAMEED, S/o AHAMMED, KARUMANAM HOUSE, ERMALAM P.O., ALAMPADY, KASARAGOD.** **5. KADEEJABI, W/o ABDULLA MUSLIYAR** , **PANALAM HOUSE, CHEROOR P.O., KASARAGOD.** **6. SAFIYABI, W/o DAWOOD, THAIVALAPPU HOUSE, P.O. ALAMPADY, KASARAGOD.** **7. SAINABI, W/O.D.M.ASHRAF, DHARU SUNNA HOUSE, DESHAMKULAM P.O., BEDRADUKKA, KASARAGOD.** **DCS** ## **WPC.No. 10214 of 2006 (N)** **8. SAKEENABI, W/o ABOOBACKER, KAULATH MANZIL P.O. CHEROOR, PANALAM, KASARAGOD.** **9. ABOOBACKER, S/o AHAMMED, KARUMANAM HOUSE, ERMALAM P.O. ALAMPADY, KASARAGOD.** **10. JUVARIYA, D/O AHAMMED, KARUMANAM HOUSE, ERMALAM P.O., ALAMPADY, KASARAGOD** **11. RAMLABI, D/o AHAMMED AGED 17 YEARS, MINOR REPRESENTED BY GUARDIAN MOTHER, AYSHABI, KARUMANAM HOUSE, ERMALAM P.O., ALAMPADY, KASARAGOD.** **12. HABEEBA, D/o AHAMMED AGED 15 YEARS, MINOR REPRESENTED BY GUARDIAN MOTHER AYSHABI, KARUMANAM HOUSE ERMALAM P.O. ALAMPADY KASARGOD** **13. MUHAMMED ALI, S/O AHAMMED AGED 12 YEARS, MINOR REPRESENTED BY GUARDIAN MOTHER AYSHABI, KARUMANAM HOUSE, ERMALAM P.O., ALAMPADY KASARGOD .** **ADDL. PETITIONERS IMPLEADED AS PER ORDER DATED 28.05.2007 IN I.A. NO. 5013/2007** ## **BY ADV. SRI.KODOTH SREEDHARAN** **DCS** ## **WPC.No. 10214 of 2006 (N)** **RESPONDENT(S) :** **-------------------------** **1. SALES TAX OFFICER, HOSDURG, KASARAGOD DIST.** **2. DISTRICT COLLECTOR, KASARAGOD.** **3. COMMISSIONER OF LAND REVENUE, SECRETARIAT, THIRUVANANTHAPURAM.** **4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-1.** **R1 TO R4 BY SRI.JOSEPH GEORGE, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** ## **WPC.No. 10214 of 2006 (N)** ## **APPENDIX** **PETITIONER(S) EXHIBITS :** |**P1.**|**:**|**COPY OF THE ORDER OF THE APPELLATE TRIBUNAL**| |---|---|---| |||**DT:17.10.1979 TO THE PETITIONER.**| |**P2.**|**:**|**COPY OF THE RECEIPT ISSUED BY THE MUTTATHDY**| |||**VILLAGE OFFICE DT:06.07.2005.**| |**P3.**|**:**|**COPY OF THE APPLICATION BEFORE THE 2ND**| |||**RESPONDENT DT:18.05.1998.**| |**P4.**|**:**|**COPY OF THE ORDER OF THE 2ND RESPONDENT**| |||**DT:26.11.2001.**| |**P5.**|**:**|**COPY OF THE APPEAL DT:12.01.2002 BEFORE THE**| |||**MINISTER FOR REVENUE BY THE PETITIONER.**| |**P6.**|**:**|**COPY OF THE REPLY DT:27.12.2002 ISSUED BY THE**| |||**SECRETARY TO GOVERNMENT.**| |**P7.**|**:**|**COPY OF THE APPEAL SUBMITTED BEFORE THE**| |||**3RD RESPONDENT DT:28.03.2005.**| |**P8.**|**:**|**COPY OF THE G.O.(MS) NO.561/67/RD DT:17.11.1967**| |||**BY THE GOVERNMENT.**| |**P9.**|**:**|**COPY OF THE G.O.(MS) NO.88/68/RD DT:09.02.1968**| |||**ISSUED BY THE GOVERNMENT.**| |**P10.**|**:**|**COPY OF THE G.O.(MS) NO.196/96/RD DT:22.03.1996**| |||**ISSUED BY THE GOVERNMENT.**| **RESPONDENTS' EXHIBITS : NIL** **/TRUE COPY/** **P.A.TO JUDGE** **DCS** **DCS** S.SIRI JAGAN, J. ================== W.P.(C).No. 10214 of 2006 ================== Dated this the 6[th] day of February, 2012 J U D G M E N T The petitioner was an assessee under the Central Sales Tax Act. For the years 1971-72 and 1972-73, the petitioner was assessed to Central Sales Tax demanding a total amount of ` 50,435/- as tax. The petitioner filed appeals against the assessment orders before the Appellate Tribunal. During the pendency of the appeals, since the petitioner did not pay the tax assessed and no stay was obtained from the appellate authority, the 1[st] respondent enforced the recovery and brought 1.88 acres of property belonging to the petitioner for sale for recovery of the amount. Since there were no bidders in the sale proceedings, the State Government purchased the property for paise 10 under Section 50(2) of the Kerala Revenue Recovery Act. According to the petitioner, the petitioner was not aware of these proceedings. Subsequently, one of the appeals was allowed and consequently, the amount payable by the petitioner was considerably reduced. Pursuant to that order of the appellate authority, no notice was issued to the petitioner for re-assessment. Long thereafter, in 1998, the petitioner obtained encumbrance certificate in respect of the property and the petitioner found that, as per the encumbrance certificate, the State was the present owner of the property. The petitioner immediately approached the District Collector by filing Ext.P3 for reconveyance of the property after accepting the amounts due. By Ext.P4, the District w.p.c.10214/06 - : 2 :- Collector rejected the claim on the ground that as per the Government order on the subject, for reconveyance of the property, the party has to apply within two years from the date of confirmation of the sale, that is 28.12.1978 in this case. Against that order, the petitioner filed Ext.P5 appeal before the Government. The Government returned the appeal stating that the petitioner has to approach the Commissioner of Land Revenue. The petitioner approached the Commissioner of Land Revenue, who passed Ext.P8 order holding that an application for reconveyance after the expiry of one year from the date of confirmation of sale will not be entertained. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: - “i) A writ of certiorari or any other appropriate writ order or direction quashing Ext.P4 order. - ii) A writ of mandamus or any other appropriate writ or order directing the respondents to re-convey 1.88 acres of the brought-in-land comprised in R.S.No.294/2 of Muttathodi Village in Kasaragod District to the petitioner to meed the ends of justice after receiving the due amount to the Government. - iii) A writ of declaration or any other appropriate writ or order declaring that fixation of cut of date in Ext.P9 & P10 govt. orders are arbitrary and unconstitutional. - iv) An order of stay of all further proceedings pursuant to Ext.P4 order including that of taking possession of 1.88 acres of land in R.S.No.294/2 of Muttathodi Village in Kasaragod Taluk from the petitioner.” The petitioner died during the pendency of the writ petition and his legal heirs have come on record as additional petitioners to prosecute the writ petition. w.p.c.10214/06 - : 3 :- 2. According to the petitioner, all along and even now the petitioner has been and is in possession of the property in question and insofar as, in view of the order of the Sales Tax Appellate Tribunal, the original order has been set aside, the sale pursuant to the original order, which is not in existence, itself is a nullity and, therefore, the petitioner is entitled to reconveyance of the property. The petitioner also contends that in view of the Division Bench decision of this Court in _**District Collector v. Subaida Beevi**_ , 2010 (1) KLT 913, the purchase of the property by the State of Kerala itself is illegal insofar as the sale is for realisation of the Central Sales Tax due to the Central Government and, therefore, going by the said decision, the purchase would be valid only if it is purchased on behalf of the Government of India, which has not been done in this case. In support of the contention that in view of the appellate order, the original order is completely wiped out, the petitioner relies on the decision of the Supreme Court in _**I.T. Officer** v_ _**. Seghu Buchiah Setty**_ , AIR 1964 SC 1473. 3. A counter affidavit has been filed by the 2[nd] respondent, wherein it is stated that the property was attached as early as in 1977 and sale was confirmed on 28.12.1978. The petitioner approached the Government for reconveyance of the land only on 18.5.1998, after 20 years and, therefore, there is delay and laches on the part of the petitioner. They also support the impugned orders on the ground that w.p.c.10214/06 - : 4 :- the sale itself was validly conducted insofar as the petitioner has not obtained any stay of the assessment orders and, subsequent appellate orders will not affect the validity of the sale as such, which was conducted validly when the same was made. 4. I have considered the rival contentions in detail. 5. The original order of assessment was set aside by the Appellate Tribunal by Ext.P1 order. Pursuant to the appellate order, at least in respect of one appeal, the 1[st] respondent, as the assessing officer, was bound to issue fresh notice to the petitioner, compute the tax due in accordance with the appellate order and then issue a demand notice to the petitioner demanding the reduced tax due. The learned Government Pleader was not able to satisfy me that that procedure has been complied with and even today such situation continues. Therefore, I am of opinion that the proceedings are still pending since, after the appellate order, the 1[st] respondent Sales Tax Officer has not taken any steps for completing the assessment in respect of the one year in respect of which the appeal was allowed. The question as to whether a sale conducted validly pursuant to the impugned order becomes a nullity when subsequently the appellate authority sets aside the original order does not require to be considered in this writ petition in view of the peculiar facts and circumstances of this case, which are sufficient to give relief to the petitioner. There is no third party involvement in these proceedings. w.p.c.10214/06 - : 5 :- The Government themselves purchased the property of the petitioner for paise 10. Therefore, no right of third parties need be considered in this writ petition. Therefore, I am not going into the question as to whether the sale itself would be a nullity on the appellate authority setting aside the assessment order. In any event, in the decision of _**Seghu Buchiah Setty's case**_ (supra), the Supreme Court has held that in case of an appellate order reducing the assessment, the original order goes and if it goes, the notice of demand also falls to the ground and the defaulter ceases to be a defaulter any more. Since subsequent to the appellate order, the 1[st] respondent has not issued any further notice and reassessed the tax due, the situation continues to be the same and there is no order of assessment even as on today. As such, the Government cannot rely upon the sale on the ground that the petitioner did not seek reconveyance of the property within two years. There is another illegality also in these proceedings. In the decision in _**Subaida Beevi's case**_ (supra), a Division Bench of this Court has held that when the Government purchases the property under Section 50 (2) for recovery of the amounts due to a requisitioning authority, the Government has to purchase the property in the name of the authority to whom the amount is due and not in the name of the Government. Here the amount is due to the Central Government as is clear from Section 9 of the Central Sales Tax Act. Therefore, for the sale to be valid, the Government should have purchased the property in the w.p.c.10214/06 - : 6 :- name of the Central Government. That has not been done in this case. I am of opinion that even otherwise, on considerations of equity also, the legal heirs of the petitioner are entitled to reconveyance of the property, notwithstanding the long delay in approaching the Government for reconveyance, which is in the peculiar facts and circumstances of this case. A democratic Government cannot take a Shylockian attitude in such matters, especially when the sales tax authorities have also not done what they ought to have done after the appellate order. The Government Pleader was not able to satisfy me that the Government has actually taken possession of the property, since no document had been produced in respect of the same. The petitioner has stated in the writ petition that he continued to be in possession of the property even after the sale, about which, he was not aware and had no notice of. Therefore, I am of opinion that on the legal heirs of the petitioner paying the amounts due as per the appellate order, they are entitled to reconveyance of the property. Accordingly, this writ petition is disposed of with the following directions: The 1[st] respondent is directed to pass fresh oders in accordance with Ext.P1 order of the Sales Tax Appellate Tribunal within one month from the date of receipt of a certified copy of this judgment with notice to the legal heirs. If the legal heirs of the petitioner pay the amounts due as per the said assessment with interest at statutory w.p.c.10214/06 - : 7 :- rate till payment and meet the expenses for reconveyance, the property shall be reconveyed to the legal heirs of the original petitioner notwithstanding the fact that the petitioner did not apply within two years. The demand as directed above shall be served on the legal heirs of the original petitioner after completing the revised assessment as per the appellate order, by the 1[st] respondent within one month from the date of receipt of a certified copy of this judgment and the legal heirs of the petitioner shall pay the amounts so assessed within one month thereafter. On the legal heirs of the petitioner paying the said amounts, the property shall be reconveyed by the Government to the legal heirs of the original petitioner at their expense, within another three months from the date of payment. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge