Bindu Kishore v. District Collector, Thrissur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944** **WA NO. 510 OF 2023** **AGAINST THE JUDGMENT IN WP(C)22382/2022 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER IN THE WP:** BINDU KISHORE, W/O. T S KISHORE, THASHNATH HOUSE, CHENDRAPINNI, THRISSUR, PIN - 680687 BY ADVS. V.M.SYAM KUMAR KRIPA ELIZABETH MATHEWS SNEHA RAJIV ## **RESPONDENTS/RESPONDENTS IN WP:** 1 DISTRICT COLLECTOR, COLLECTORATE, CIVIL LINES, THRISSUR, PIN - 680001 2 TAHASILDAR, TALUK OFFICE, KODUNGALLUR, THRISSUR DIST., PIN - 680687 3 VILLAGE OFFICER, VILLAGE OFFICE CHENDRAPPINNI, THRISSUR DIST., PIN - 680687 4 T.S. KISHORE, S/O SARANGADHARAN, THASHNATH HOUSE, KANNAMPALLIPURAM, CHENDRAPINNI, THRISSUR, PIN - 680687 5 DEPUTY COMMISSIONER OF EXCISE (ABKARI) OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE, MANDYA DISTRICT, KARNATAKA,, PIN - 571401 ## **OTHER PRESENT:** SHAJAHAN.T.K- SR.G.P VIPINDAS T.K.-SR.G.P THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No.510/2023 2 ## **“C.R.”** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------W.A.No.510 of 2023** **-------------------------------------Dated this the 9[th] day of March, 2023** **J U D G M E N T** ## **C.Jayachandran, J** The petitioner in W.P(C).No.22382/2022 is the appellant. She impugns the order of the learned Single Judge dated 11.01.2023 in the said writ petition, as per which, challenge to Ext.P4 order of the second respondent/Tahsildar under the Kerala Revenue Recovery Act ['the K.R.R Act', for short] was repelled. **2.** Heard Sri.V.M.Syam Kumar, learned counsel for the appellant and Sri.Vipindas T.K, learned Government Pleader for respondents 1 to 3 and 5. The fourth respondent, who is none other than husband of the appellant, was not represented before us. W.A.No.510/2023 3 **3.** The first point canvassed by the learned counsel for the appellant is that the instant revenue recovery proceedings are illegal and unsustainable, since the same has been initiated in respect of an alleged tax arrears for the period 1991-1992, a time barred debt. He then invited our attention to S.44 of the K.R.R Act to point out that no opportunity has been granted to the appellant before Ext.P4 order was passed. It was also contended that before proceeding under S.44(3), orders from a competent court must be obtained, which requirement is also violated. Non-compliance of the mandatory requirements under S.44 vitiates Ext.P4 order is the submission. It was also submitted that the K.R.R Act cannot be pressed into service for recovery of an amount allegedly due to the Government of Karnataka. At any rate, the petitioner should have been afforded an opportunity to adduce evidence as 4 ## W.A.No.510/2023 regards the factual parameters to be satisfied before initiating proceedings under S.44(3) is the final submission. **4.** Learned Government Pleader argued in support of the impugned judgment. It was pointed out that the fourth respondent/defaulter had transferred the subject property in favour of his mother in the year 1996, after the tax arrears have fallen due and that, his mother transferred the subject property in favour of the present appellant/petitioner, who is none other than the wife of the fourth respondent/defaulter in the year 2006. It was submitted that the transfers made were fraudulent, squarely falling within the sweep of S.44 of the Revenue Recovery Act. As regards the contention based on _audi alteram partem_ , it was submitted that a perusal of Ext.P4 order would amplify that the appellant was heard before issuance of the same. At any rate, the non-compliance of the proviso to S.44 W.A.No.510/2023 5 is not fatal, in cases where such opportunity would only be an empty formality, in the sense that, it could not have created any difference in the decision reflected vide Ext.P4. **5.** Having heard the learned counsel appearing on both sides, we find that the factual matrix available squarely attracts S.44 of the K.R.R Act. It is not disputed before us that the first transfer in favour of the fourth respondent's mother in the year 1996 was after the tax arrears for the period 1991-1992 have fallen due. The contention that an order of a competent court is a _sine qua non_ to proceed under subsection (3) of S.44 is also not appealing. A perusal of S.44(3) does not indicate such a mandate. Instead, the expression 'subject to the order of a competent court' has to be read and understood in the context of the dominant purpose of subsection (3), that is to say, the presumption with respect to the transfer made in the circumstances 6 ## W.A.No.510/2023 culled out in subsection (3), that such transfer is made with intent to defeat or delay the recovery of the arrears, until the contrary is proved. The right of the Collector to proceed with the recovery of public revenue, as if such transfer has not taken place, will be subject to orders, if any, of a competent court, especially with respect to the fraudulent nature or otherwise of the questioned transfer. It does not mandate to the contrary that, in the absence of an enabling order of the competent court, the Collector cannot proceed with the recovery. A learned Single Judge of this Court in ## **Gourikutty Amma v. District Collector, Alleppey** [1972 KLT SN 1] held to the same effect, with which we concur. **6.** The next question is the one pertaining to _audi alteram partem,_ which is a clear mandate under the proviso under S.44. The word used is 'shall'. A perusal of Ext.P4 order of attachment would clearly W.A.No.510/2023 7 demonstrate that, as per letter cited as reference no.2, notice has been issued to the present appellant/petitioner. It is also referred to in Ext.P4 that the appellant appeared before the Tahsildar through her counsel and filed objection. There is a further reference in Ext.P4 that the appellant's lawyer was heard and her records were examined. We, therefore, find little merit in the last contention of the appellant alleging noncompliance of _audi alteram partem_ . **7.** Another contention raised by the learned counsel for the appellant is that revenue recovery proceedings cannot be initiated for recovery of a time-barred debt. The legal position in this regard was settled by a three Judge Bench of the Honourable Supreme Court in **State of Kerala v. V.R.Kalyanikutty** [1999(3)SCC 657]. Interpreting the expression 'amounts due' the Supreme Court held in paragraph no.18 that claims which are time-barred on the date W.A.No.510/2023 8 when a requisition is issued under S.69(2) of the K.R.R Act are not amounts due under S.71 and cannot be recovered under the said Act. In the instant case, admittedly the arrears pertain to the year 1991-1992, which was allegedly due to the Government of Karnataka. A perusal of Ext.P4 does not indicate the date on which requisition under S.69(2) was made by the Government of Karnataka. However, reference no.1 to Ext.P4 refers to a letter issued by the District Collector dated 26.08.2015 for revenue recovery. We also notice from paragraph no.3 of the counter affidavit filed by the second respondent that the requisition from the Deputy Commissioner, Mandya District, Karnataka bearing no.Exe/Exs/Mdy/66/91-92 is dated 28.11.2014 for realization of 2.08 Crores towards abkari dues. Going by the definition of S.2(a), 'arrear of public revenue due on land' means the whole or any portion of any kist or installment of such revenue not paid W.A.No.510/2023 9 on the day, on which, it falls due according to the kistbandi or any engagement or usage. The same is referred to only to show that the amount due partakes the character of arrear of public revenue and not an amount due, as if it is an arrear of land revenue. Going by Article 112 of the Limitation Act, the period prescribed for filing a suit on behalf of the State Government is 30 years. In as much as the arrears pertains to the year 1991-92 and for reason of having initiated recovery proceedings in the year 2014 as referred above, we find that the debt which is sought to be recovered is not barred by the law of limitation. Therefore, the legal proposition held in **Kalyanikutty** supra is against the appellant on the facts coming out in this case. The said contention is, therefore, rejected. **8.** The last contention to be dealt with is with regard to the applicability of K.R.R Act to the arrears due to the State of Karnataka. It was W.A.No.510/2023 10 contended that the K.R.R Act, 1968 applies only to the public revenue due to the Government of Kerala. Specific reliance was placed upon S.69 of the Act, which prescribes the procedure for recovery of public revenue, when the defaulter is residing or holding property outside the district wherein default has been made. Based on S.69, it was pointed out that, reference to 'district' as employed in S.69 implies arrears of revenue within the State. Here again, we cannot endorse the submission of the learned counsel for the appellant. We notice that there is no expression like 'State Government' or 'Government of Kerala' in the K.R.R Act, 1968. Instead, the expression used is Government simplicitor. S.2(j) which deals with public revenue due on land again uses the expression dues payable to the Government. While appreciating the contention of the appellant based on the term 'district' as employed in S.69, we should necessarily notice the W.A.No.510/2023 11 purport and provisions of the Revenue Recovery Act, 1890, the Central Act No.1 of 1890, which by virtue of S.1(2), extends to the whole of India, except the State of Jammu and Kashmir. The purpose of enactment is to make better provision for recovering certain public finance. S.3 specifically deals with recovery of public demands by enforcement of processes in other districts than those in which they become payable. The procedure prescribed is that the Collector of the district where the arrears have fallen due has to sent a certificate in the prescribed schedule to the Collector of the district where the defaulter has property. Therefore, the expression 'district' as employed in S.69 of the K.R.R Act has to be read and understood bearing in mind the specific purpose for which the Revenue Recovery Act, 1890 was enacted. In other words, the applicability of the K.R.R Act cannot be understood to have been limited in its operation within the W.A.No.510/2023 12 State of Kerala, merely by relying upon employing the term 'district' in S.69, especially in the absence of a specific provision enabling such restriction. We are fortified in adopting the above interpretation by a Bench decision of this Court in **Varkey v. Tahsildar, Muvattupuzha Taluk** [1974(2) ILR Ker 249]. The specific contention raised in that case was that the amount due to the State of Madhya Pradesh, pursuant to violation of a bond executed in connection with admission in a nursing school, was not recoverable under the K.R.R Act, 1968. The Division Bench relied upon Ss.3 and 5 of the Central Act, 1890 to find that the amount is recoverable under the K.R.R Act. To the same effect is another Bench decision of this Court in **Ahamed v. District Collector** [1988 (2) KLT SN 75 (Case No.115)], where again, reliance is placed upon S.3(3) of the Central Act. We, therefore, repel the last contention also of the appellant. 13 ## W.A.No.510/2023 We find no illegality or infirmity in the judgment impugned of the learned Single Judge, with the result, we dismiss this appeal. ## **Sd/-** **K.VINOD CHANDRAN JUDGE Sd/C.JAYACHANDRAN JUDGE** Sbna/