C.ANTHRAYOSE v. STATE OF KERALA & PUTHUPPALLY GRAMA PANCHAYATH

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2016-03-08
Court Decision / Holding: Writ petition disposed of. Revenue recovery actions (Exts. P9–P12) kept in abeyance for four months to enable the petitioner to approach the Civil Court for proper remedies; petitioner relegated to civil proceedings and not granted writ relief against the recovery measures.
Final Disposition: Disposed of with directions to proceed in Civil Court; four months’ stay of further recovery actions to allow civil remedies; writ petition disposed accordingly.

Parties to the Case

Appellants / Petitioners

C.ANTHRAYOSE

Respondents

State of Kerala represented by District Collector, Kottayam
Puthuppally Grama Panchayath represented by its Secretary, Puthuppally Grama Panchayath, Kottayam

Legal Representation & Advocates

Counsels for Petitioners

• Sri Rajeev V. Kurup
• Sri Alex. M. Scaria

Counsels for Respondents

• Sri Nooshad Thottathil
• Sri Karjet Koduvath

Case Synopsis & Summary

This Writ Petition (Civil) No. 7087 of 2011 challenges revenue recovery proceedings initiated by the Puthuppally Grama Panchayath against C. Ananthrayose, a former licensee of Room No.7 in the Panchayath's building. The petitioner held the premises under a licence from 4/1997 to 3/1998 and surrendered possession on 27 March 1998. He contends that arrears pertaining to 4/1997–3/1998 amounting to Rs. 7,444 were remitted, and that after surrender the petitioner is not liable for any amount beyond that period. Nevertheless, the Panchayath issued notices for attachment under Sections 34 and 7 of the Kerala Revenue Recovery Act, seeking recovery of about Rs. 1,47,854 for the period 1997–2010 (Exts. P9–P12). The petitioner asserts that the claim is time-barred under Section 243 of the Kerala Panchayath Raj Act, 1994, and that the alleged surrender is a disputed fact requiring proof, which cannot be decided in writ jurisdiction. The respondents maintain that the recovery of arrears remains legally tenable. The High Court decided that the surrender is a disputed fact needing evidence, and that the starting point of limitation depends on the termination of the licence. Since this involves disputed facts, extraordinary writ relief is inappropriate. The court relegated the matter to civil court and stayed further Recovery Proceedings for four months to allow proper remedies. The petition was disposed accordingly.

Provisions of Law Cited

Section 34 and 7 of the Kerala Revenue Recovery ActSection 243 of the Kerala Panchayath Raj Act, 1994

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that liability extends only to the period of surrender (4/1997–3/1998) and that the amount demanded after 1998, including the notices under Sections 34 and 7 of the Kerala Revenue Recovery Act, is not payable. He argues that the surrender, evidenced by Ext. P2 and other materials, ends the liability and that subsequent recovery attempts are barred by limitation under Section 243 of the Kerala Panchayath Raj Act, 1994. He seeks quashing Exts. P9–P12 and a declaration that the claim is time-barred, with liberty to pursue civil remedies if necessary.

Contentions of Respondents

The Panchayath contends that the liability for arrears extends to 2010 and that recovery actions are legally tenable under the Revenue Recovery Act. It maintains that the amount claimed is legitimate and supported by notices and demands. It argues that the issue of surrender is a factual matter not suitable for writ jurisdiction and that the claim should be adjudicated, if at all, in a civil suit.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Kerala v. V.R. Kalliyanikutty	1999 (2) KLT 146	Mentioned Only	Cited to discuss limitation and recoverability principles under the Kerala Revenue Recovery Act, but the present case involves disputed facts and writ jurisdiction, leading to civil remedy rather than a direct application of the case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937** ## **WP(C).NO. 7087 OF 2011 (I)** **----------------------------------** **PETITIONER:** - **-------------------** **C.A.ANTHRAYOSE, THANNIMOOTTIL HOUSE, PUTHUPPALLY.P.O, KOTTAYAM.** **BY ADVS. SRI.RAJEEV V.KURUP SRI.ALEX.M.SCARIA** **RESPONDENTS:** - **------------------------** **1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM-686 002.** **2. PUTHUPPALLY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PUTHUPPALLY GRAMA PANCHAYATH,, KOTTAYAM-686011.** - **R1 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL R2 BY ADV. SRI.KARJET KODUVATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **WP(C).NO. 7087 OF 2011 (I)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE LETTER DATED 27.03.1998. EXT.P2: COPY OF THE LETTER 23.03.98 ISSUED BY THE R2. EXT.P3: COPY OF THE LETTER DATED 26.02.2011 ISSUED BY THE R2. EXT.P4: COPY OF THE TAX RECEIPT DATED 21.09.2010. EXT.P5: COPY OF THE TAX RECEIPT DATED 19.01.2011. EXT.P6: COPY OF THE NOTICE DATED 31.12.2004 ISSUED BY THE R2. EXT.P7: COPY OF THE REPLY NOTICE DATED 07.01.2005. EXT.P8: COPY OF THE POSTAL RECEIPT. EXT.P9: COPY OF THE OBJECTION DATED 05.09.2005 FILED BY THE PETITIONER. EXT.10: COPY OF THE POSTAL RECEIPT DATED 08.05.2009. EXT.P11: COPY OF THE DEMAND NOTICE DATED 27.09.2010. EXT.P12: COPY OF THE DEMAND NOTICE DATED 27.11.2010.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **AS** **K.HARILAL, J. -----------------------------------------------W.P.(C).No.7087 of 2011 -------------------------------------------------** Dated this the 8[th] day of March, 2016 ## **J U D G M E N T** The petitioner was a tenant, holding Room No.7 of the building complex, which belongs to the respondent Panchayath, pursuant to an auction conducted by the Panchayath. According to the petitioner, he was holding the said room under the said licence arrangement from 4[th] month of 1997 to 30[th] March 1998. On 27[th] March 1998, the petitioner had surrendered the room to the second respondent Panchayath, by handing over the vacant possession and key to the then Secretary Mr.T.T.Joseph and he had taken possession of the said room. He had sent Ext.P1 letter, to the respondent Panchayath intimating the surrender of the room along with his intention to remit the arrears. The said letter was issued in response to Ext.P2 letter, calling upon the petitioner to surrender the room within the time shown in Ext.P2. The petitioner further submits that an amount of Rs.7,444/was due, by way of arrears of licence fee and he had 2 ## **W.P.(C).No.7087 of 2011** tendered the said amount to the concerned clerk of the Panchayath; but, he refused to accept the said sum. After surrendering of the said room, it was given to various other persons and they were occupying the said room paying the required licence fee from time to time. So the petitioner was liable to pay arrear up to 31/03/1998 amounting to Rs.7,444/- only and he is not liable to pay any amount thereafter. While so, the petitioner had received Ext.P6 notice, wherein it is stated that pursuant to the direction in O.P.No.6168/1998, filed by the petitioner, the petitioner had remitted 50% of arrear as on 20/05/1998, but the petitioner has to pay the total amount of Rs.1,46,246/-. In response to Ext.P6, the petitioner had sent Ext.P7 notice to the Panchayath, stating the details of the surrender and the non-liability to pay the amount other than Rs.7,444/- for the period covering from 4/1997 to 3/1998. 2. During 2010, by proceeding dated 27/09/2010, the Panchayath had moved for initiating revenue recovery steps against the petitioner for realization of the so called arrears of license fee for the period which he had 3 ## **W.P.(C).No.7087 of 2011** not occupied the room. To the utter shock and dismay, the petitioner was served with Exts.P11 and P12 notices, under Sections 34 and 7 of the Revenue Recovery Act and he was directed to pay an amount of Rs.1,47,854/-, with incidental expenses, as arrear of licence fee from 1997 to 2010. According to the petitioner, no amount other than Rs.7,444/- was due to the respondent, as arrear of licence fee from the petitioner and the revenue recovery proceedings initiated against the petitioner, after a long lapse of one decade is barred by limitation. It is with this averments, this writ petition is filed with a prayer, to quash Exts.P9 and P10 and to declare that the claim of the respondent, is barred by limitation and also to issue a direction to the second respondent not to collect any amount, as claimed in Exts.P11 and P12. 3. Heard the learned counsel for the petitioner. 4. Even though, notice was duly served to the respondent, Panchayath and entered appearance, at the initial stage, today, there is no representation for the respondent. The point to be considered is, whether there is any reason or circumstance, warranting interference 4 ## **W.P.(C).No.7087 of 2011** with Exts.P10, P11 and P12, invoking extraordinary jurisdiction under Article 226 of the Constitution of India. 5. The main thrust of the argument advanced by the learned counsel for the petitioner is that the revenue recovery proceedings initiated under Exts.P10 to P12 are barred by limitation. The learned counsel for the petitioner submits that even, according to the petitioner, the arrear of amount which is sought to be recovered, under Exts.P10 to P12, is an amount due to the respondent from 1997 to 2010. The learned counsel further drew my attention to Section 243 of the Kerala Panchayath Raj Act, 1994 (herein after referred to as 'the Act') and submits that no distraint shall be made, after the expiration of the period of three years from the date, on which the distraint might first have been made. In the instant case, according to the petitioner, the distraint have been made at first in the year 1998 and the same is evidenced, by Ext.P2. In support of the above argument, the learned counsel cited the decision of the Apex Court in State of **Kerala v. V.R.Kalliyanikutty** [1999 (2) KLT 146]. 6. It is the case of the petitioner that he had 5 ## **W.P.(C).No.7087 of 2011** surrendered the shop room in the year 1998 and thereafter, the respondent Panchayath had rented out the said shop room to various other persons. But, there is no material on record to show that the respondent acknowledged or admitted or recognised the surrender of the shop room as alleged by the petitioner. It is true that in **V.R.Kalliyanikutty's** case (supra), the Apex court held that all claims which are legally recoverable and are not time barred alone can be recovered under the Kerala Revenue Recovery Act. According to Section 243 of the Act, the period of limitation is 3 years on the date on which the first distraint made. I am of the opinion that the surrender of the shop room in the year 1998 claimed by the petitioner is a disputed fact, which requires to be proved by evidence, before the civil court. The starting point of the period of limitation depends upon the termination of licence arrangement or surrender of the shop room, as the case may be. Needless to say, disputed facts, which require evidence cannot be determined, invoking extraordinary jurisdiction under Article 226 of the Constitution of India. Similarly, this Court is of the view 6 ## **W.P.(C).No.7087 of 2011** that the claim raised by the respondent is a disputed claim which requires to be adjudicated by the civil court. So, the petitioner is at liberty to prove his case that the claim is barred by limitation, in such civil suit to be instituted by the respondent or in the civil suit to be instituted by him. 7. In the above view of the matter, the petitioner is relegated to the civil court, seeking appropriate remedies under law. Since the claim raised by the respondent is not an adjudicated claim, the petitioner can be given sufficient time to approach the Civil court. In the above view, all further proceedings pursuant to Exts.P10 to P12, shall be kept in abeyance for a period of four months from today, enabling to petitioner to seek proper remedies before the Civil Court. This writ petition is disposed of accordingly. Sd/- **K.HARILAL, JUDGE.** AS