D. Nesamani v. The Kerala Khadi & Village Industries Board and Tahsildar (RR), Revenue Recovery, Neyyattinkara

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937 WP(C).No. 2054 of 2010 (F) --------------------------- PETITIONER: --------------- D.NESAMANI, PANANGALA PUTHUVAL PUTHEN VEEDU, KULATHUR, UCHAKADA.P.O. NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: ------------------- 1. THE KERALA KHADI & VILLAGE INDUSTRIES BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. THE TAHSILDAR (RR) REVENUE RECOVERY, NEYYATTINKARA. R1 BY ADV. SRI.K.P.HARISH R1 BY ADV. SRI.R.S.HARI KUMAR, SC, KERALA KHADI AND VILLAGE INDUSTRIES BOARD R1 BY ADV. SRI.TOM K.THOMAS, SC, KERALA KHADI & VILLAGE INDUSTRIES BOARD R2 BY GOVERNMENT PLEADER SRI.C.K.JAYAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 2054 of 2010 (F) ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PROCEEDINGS DTD. 15.3.1999. EXT.P2: COPY OF THE PASSBOOK. EXT.P3: NOTICE DTD. 07/08/07 FROM THE TAHSILDAR (RR), NEYYATTINKARA. EXT.P4: EARLIER NOTICE DTD. 1.06.2007. EXT.P5: COPY OF THE DOCUMENT DTD. 9.3.1972. EXT.P6: JUDGMENT DTD.7.11.2007 IN W.P(C).NO.31328/2007 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM. EXT.P7: REPRESENTATION DTD. 4.12.2007. EXT.P8: COMMUNICATION DTD. 24.12.2007. EXT.P9: NOTICE DTD. 6.5.2009 FROM THE 2ND RESPONDENT. EXT.P10: NOTICE DTD. NIL EXT.P11: NOTICE DTD. 10.8.2009. EXT.P12: RECEIPT DTD. 26.12.2007. EXT.P13: RECEIPT DTD. 12.8.2009. EXT.P14: RECEIPT DTD. 27.3.2009. EXT.P15: RECEIPT DTD. 6.1.2007. EXT.P16: RECEIPT DTD. 20.3.2007 EXT.P17: CERTIFICATE DTD. 11.6.2007 ISSUED FROM THE MEDICAL COLLEGE, THIRUVANANTHAPURAM. // TRUE COPY // P.A TO JUDGE. ALEXANDER THOMAS, J. ----------------------------- W.P(C).No.2054 Of 2010 --------------------------------Dated this the 9th day of February, 2016. ## J U D G M E N T The petitioner herein had availed a loan of Rs.3,60,000/from the 1[st] respondent-The Kerala Khadi & Village Industries Board (hereinafter referred to as 'the Board') in the year 1999. An extent of landed property coming to 20.20 ares situated in Re.Sy.No.134/21/1 of Kulathoor Village, Neyyattinkara was furnished as security by the petitioner at that point of time in respect of the aforesaid loan transaction with the 1st respondent. The petitioner had defaulted repayment of the above loan amounts which resulted in initiation of Revenue Recovery proceedings against him. Ext.P-3 disclosed that apart from the aforestated extent of land of 20.20 ares, which was furnished as security, a further plot of land coming to an extent of 20.40 ares belonging to the petitioner was also sought to be proceeded against as per the impugned Revenue Recovery proceedings. As per Ext.P-4, sale of ::2:: W.P(C).No.2054 Of 2010 both the properties have been proposed by taking recourse to the provisions in Sec.49 of the Revenue Recovery Act. Challenging the aforesaid proceedings initiated under the Revenue Recovery Act, the petitioner herein had earlier filed a Writ Petition as W.P(C). No.31328/2007. The sheet anchor of the petitioner's contentions therein was that the first plot of land coming to an extent of 20.20 ares (which was furnished as security in the loan transaction) along with residential building thereon is more than sufficient to meet the liability of the loan availed by the petitioner and that by proceeding not only against the aforesaid first plot of land but also the second plot of land coming to an extent of 20.40 ares is untenable and improper, etc. The 1[st] respondent-Board the took the stand that the 2nd respondent-Tahsildar has reported that the sale of the first plot of land coming to an extent of 20.20 ares (which was furnished as security in the loan transaction) would not be sufficient to satisfy the amount sought to be recovered by the Board and that it is necessary that the other property belonging to the petitioner should also be proceeded against. After hearing both sides this Court as per Ext.P6 judgment dated 7.11.2007 disposed ::3:: W.P(C).No.2054 Of 2010 ## of W.P(C).No.31328/2007 in the following terms as can be seen from paras 3 & 4 of the said judgment. “3. I heard the standing counsel for the 1st respondent and the learned Government Pleader appearing on behalf of the Recovery Officer. 4. Learned counsel for the petitioner Sri.B.Krishna Mani submits that Tahsildar should consider whether sale of the entire extent of mortgaged property is necessary to satisfy the requisition made by the 1st respondent. In the circumstances, this writ petition is disposed of in the following terms. i) Petitioner shall file a representation before the 2nd respondent indicating the value of the mortgaged property and also indicating the extent of land, which would be required to be sold to satisfy the requisition made by the 1st respondent, within a period of one month from today; ii) If such a representation is filed, the 2nd respondent shall, after conducting such reasonable enquiries as are deemed appropriate, proceed with the sale of requisite extent of land out of the mortgaged property in the 1st instance. I make it clear that Tahsildar is of the opinion that it is necessary to bring the entire mortgaged property to sale as a whole there is nothing which prevents him from adopting such a course of action. iii) After sale of the mortgaged property either in whole or in part if there is any further amount due from the petitioner, then the 2nd respondent shall notify the sale of the other property, which is mentioned in Exhibit-P3 and take appropriate proceedings under the provisions of the Act. iv) Further proceedings pursuant to Exhibit-P4 shall be kept in abeyance till the process as mentioned above is completed, provided the petitioner pays an amount of Rs.1.25 lakhs, within a period of one month from the date of receipt of a copy of this judgment.” ::4:: W.P(C).No.2054 Of 2010 The aforesaid directions were issued by this Court in Ext.P-6 judgment after taking due cognizance of the specific contention of the petitioner that the Tahsildar is obligated to consider whether the sale of both the properties is necessary to satisfy the requisition made by the 1st respondent-Board or whether the sale of the mortgaged property would sufficiently meet the requirements of requisition. 2. The petitioner had submitted Ext.P-7 representation dated 4.12.2007 in compliance with Ext.P-6 judgment. In Ext.P-7, the petitioner has specifically brought to the notice of the 2[nd] respondent-Tahsildar that the aforesaid mortgaged property coming to an extent of 20.20 ares (about 50 cents) would fetch atleast Rs.40,000/- per cent and that the residential building situated in the said land would fetch atleast Rs.10 Lakhs. Accordingly, the petitioner contended in Ext.P-7 that there is no necessity to sell the second plot of land having an extent of 20.40 ares and it was specifically contended that in view of the legal principles laid down by the Apex court in the case Ambati Narasayya v. M.Subba Rao and another reported in AIR 1990 SC 119, ::5:: W.P(C).No.2054 Of 2010 the sale officer is obligated to decide as to the exact quantum of property that is required to be sold to meet the claim and that without considering this crucial aspect, the Tahsildar has no power to arbitrarily decide to sell off both properties in question. Thereafter the 2nd respondent-Tahsildar issued Ext.P-8 notice dated 24.12.2007 to the petitioner directing that the petitioner should produce documents to show the value of the aforesaid land in question. It is the case of the petitioner that he has informed the 2[nd] respondent that he could not collect any documents in that regard and that the Tahsildar should make his own reasonable enquiries in that regard to ascertain the market value of the land, etc. The petitioner had also paid an amount of Rs.1,25,000/- as per Ext.P-12 dated 26.12.2007 in compliance with the directions issued by this Court in Ext.P-6 judgment. It is the case of the petitioner that thereafter the 2nd respondent-Tahsildar has not conducted any meaningful enquiry and unilaterally decided to proceed as against both the property in question as evident from the impugned Ext.P9 proceedings dated April, 2009, Ext.P-10 dated July, 2009 and Ext.P-12 dated 19.8.2009. It is the case of the petitioner that the ::6:: W.P(C).No.2054 Of 2010 aforesaid action taken by the 2nd respondent is in fragrant violation of the specific direction issued by this Court in Ext.P-6 judgment. It is also pointed out that apart from the amount of Rs.1,25,000/paid by the petitioner as per Ext.P-12, he has also paid the amount covered by Ext.P-13 to Ext.P-16 also in respect of the aforesaid outstanding dues owed to the 1[st] respondent. This Court had issued interim order dated 28.1.2010 in this case granting stay of all further proceedings pursuant to Ext.P-11 and the said interim stay was extended until further orders as per order dated 20.5.2010. The prayers in the above Writ Petition are as follows: “(i) Call for the records leading to Exhibit P11 and quash Exhibit P9 to P11 by a writ of certiorari or any other appropriate writ, order or direction; (ii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents not to proceed ahead with Exhibit P9 to P11 in any manner; (iii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to quantify the amount if any due and further direct the respondents to grant all the benefits and concessions to the petitioner as enjoyed under law; (iv) Stay all further proceedings in pursuant to Exhibit P11, until the disposal of this Writ Petition; (v) Award costs and (vi) Any other reliefs this Hon'ble Court deems fit.” 3. Heard Sri.B.Krishnamani, learned counsel for the petitioner and Sri.Tom K.Thomas, learned standing counsel ::7:: W.P(C).No.2054 Of 2010 appearing for the 1st respondent-Board and the learned Government Pleader appearing for the 2[nd] respondent-Tahsildar (RR). 4. From a mere perusal of the materials on record, this Court is of the considered opinion that the action taken by the 2nd respondent-Tahsildar (RR) which has resulted in the impugned Exts.P-9 to P-11 proceedings is nothing short of highly improper compliance of the directions issued by this Court in Ext.P-6 judgment. No effort whatsoever is seen taken by the 2nd respondent to ascertain the correct market value of the first plot of land coming to an extent of 20.20 ares and also to ascertain the market value of the residential building constructed in the said land. Not even a formal proceeding is seen passed by the 2nd respondent taking due note of the contentions of the petitioner and stating as to why such submissions of the petitioner are untenable or unsustainable and as to what exactly is the estimated reasonable market value of the land coming to an extent of 20.20 ares of land and also as to the estimated market value of the residential building constructed thereof. Instead of that the Tahsildar is seem to have ::8:: W.P(C).No.2054 Of 2010 mechanically passed Ext.P-9 proceedings dated April, 2009 and Ext.P-10 proceedings dated July, 2009 which has resulted in Ext.P11 proceedings dated 19.8.2009. No counter affidavit is seen filed by the 2[nd] respondent. Under these circumstances, the only conclusion that this Court can reach in the facts of this case is that there has been total non-application of mind on the part of the 2[nd] respondent in issuing the proceedings at Exts.P-9 to P-11. 5. The learned Standing Counsel for the 1[st] respondentBoard would submit that One Time Settlement facility is now available whereunder the persons like the petitioner can clear off the entire liability within the stipulated time on 31.3.2016. Accordingly, it is submitted on behalf of the 1[st] respondent that in case the petitioner is willing to take recourse to such facility, then there may not be any necessity to again remit the matter to the 2[nd] respondent for consideration afresh in the light of Ext.P-6 judgment. It is further stated by the learned Standing Counsel on instructions that as per the terms and conditions of the One Time Settlement (OTS) Scheme, out of the total amount of Rs.3,60,000/availed by the petitioner, an amount of Rs. 1 Lakh, being the ::9:: W.P(C).No.2054 Of 2010 margin money, could be excluded therefrom and thereafter the interest due and penal interest due should be calculated on the said balance amount of Rs.2,60,000/- and if the OTS facility is availed of by the petitioner, the penal interest could also be waived. Accordingly, the learned Standing Counsel appearing for the 1st respondent has given a statement of calculation which reads as follows: “KERALA KHADI AND VILLAGE INDUSTRIES BOARD, THIRUVANANTHAPURAM STATEMENT SHOWING THE AMOUNT DUE FROM SRI.D.NESAMONY, PANAMKALA, PUTHUVAL PUTHEN VEEDU, KULATHUR, UCHAKADA PO. WP(C) No.2054/2010 ## STATEMENT OF ACCOUNT UPTO 31.03.2016 (excluding Margin Money Loan) Loan due : 2,60,000/Interest due : 4,08,679/Penal interest due : 84,500/Stationery charges : 1,000/--------Total : 7,54,179/Repayment up to 2009 : 2,02,047/-” As per the statement furnished by the 1st respondent the total loan amount due to be paid by the petitioner is Rs.2,60,000/- (after deducting the amount of Rs.1 Lakh, being the margin money loan) ::10:: W.P(C).No.2054 Of 2010 and the interest due comes to Rs.4,08,679/-, stationary charges comes to Rs.1,000/- and it is also brought to notice that as per the OTS Scheme, the penal interest (which is shown as Rs.84,500/- as per the above statement) could also be waived. Thus, the total amount to be paid in terms of OTS scheme comes to Rs.6,69,679/(comprising of Rs.2,60,000/- + interest amount of Rs.4,08,679/and stationary charges of Rs.1,000/-). In this regard, it is also pointed out by the 1[st] respondent that the total amount paid by the petitioner comes to Rs.2,02,047/-. From Ext.P-12 dated 26.12.2007, it is seen that the petitioner had paid an amount of Rs.1,25,000/- in compliance with the directions in Ext.P-6 judgment. Thereafter, as per Ext.P-13 dated 12.8.2009, the petitioner has paid a total amount of Rs.26,295/- which is inclusive of Rs.25,000/- plus other collection charges due to the Revenue Recovery authority. By Ext.P-14 dated 27.3.2009, the petitioner has paid further amount of Rs.48,000/- and by Ext.P15 dated 6.1.2007, the petitioner has paid an amount of Rs.10,000/-. It is further stated by the petitioner that as per Ext.P-16 dated 20.3.2007, he had also paid an amount of Rs.10,000/-. It is seen ::11:: W.P(C).No.2054 Of 2010 that out of the total amount of Rs.1,25,000/- deposited by the petitioner, the 2[nd] respondent, as per Ext.P-12 dated 26.12.2007, has in turn remitted only an amount of Rs.1,19,047/- (comprising of Rs.21,047 + 49,000 + 49,000 = 1,19,047), after retaining the collection charges and other amounts due to the Revenue Recovery authority. However, it is seen that the amount of Rs.10,000/- said to have been paid by the petitioner as per Ext.P-16 dated 20.3.2007 is not seem to have been given due credit by the 1[st] respondentBoard. Under these circumstances, it is to be held that the petitioner should be duly given credit for a total amount of Rs.2,02,047/- referred to in the statement furnished by the 1st respondent-Board today plus an additional amount of Rs.9,465/covered by Ext.P-16 receipt dated 20.3.2007. (The amount of Rs.9,465/- is shown in Ext.P-16 dated 20.3.2007 and the balance amount coming to Rs.535/- is shown as collection and demand draft charges, etc.). It is made clear that it is open to the 1[st] respondent to take up the matter with the Tahsildar or the Village Officer concerned in respect of the due remittance of amount of Rs.9,465/- covered by Ext.P-16 dated 20.3.2007. Thus, it is to be ::12:: W.P(C).No.2054 Of 2010 held that the total amount paid by the petitioner comes to Rs.2,11,512/- (comprising of Rs.2,02,047/- referred to in the statement furnished by the 1st respondent + Rs. 9465/- covered by Ext.P-16 = Rs.2,11,512/-). The learned counsel for the petitioner submits that the petitioner was unaware of the present OTS Scheme and that he was unaware about the time limit of 31.3.2016 in respect of the said Scheme and therefore, this Court may pass appropriate orders granting him any reasonable instalments. The petitioner has been constrained to litigate in respect of the very same grievance on more than one occasion and the present impugned orders are direct outcome of the total non-application of mind made by the 2[nd] respondent in regard to the compliance of the directions issued by this Court in Ext.P-6 judgment. Accordingly the following directions are issued. (1) The impugned Exts.P-9, P-10 and P-11 proceedings are set aside. (2) The petitioner should be permitted to avail the facility of OTS Scheme. But in view of the interim stay issued by this Court and in view of the long pendency of this matter, it is only just and proper that necessary ::13:: W.P(C).No.2054 Of 2010 directions are also issued to enable the petitioner to pay off the liability in reasonable instalments. (3). In case the petitioner pays off the amount not less than 25% of the aforesaid amount of Rs.6,69,679/shown above, on or before 30.4.2016, then he would pay off the balance amount of the said liability in six equal monthly instalments starting from 15.5.2016. In that regard, it is made clear that in case there is any default in paying 25% amount or any other instalments, then the benefit of this direction will not enure to the petitioner. In case the petitioner complies with the above said direction in paying 25% of the due amount on or before 30.4.2016 and pays the balance amount due in six equal monthly instalments, then no further interest should be charged on the petitioner. (4) In case there is any default of the aforesaid directions, then it will be open to the 1st respondentBoard to inform the 2nd respondent-Tahsildar about the same in which case the 2nd respondent will be at liberty to effect Revenue Recovery sale of the above said first plot of land along with residential building thereon. If the entire liability owed by the petitioner cannot be realised from proceeding solely against the first property, then the 2nd respondent-Tahsildar will assess the reasonable market value of the second plot of land and will be at liberty to proceed as against that property also in part or in whole so as to realise the balance amount owed by the petitioner to the 1st respondent-Board. It is further made ::14:: ## W.P(C).No.2054 Of 2010 clear that in case of breach of the above said directions issued by this Court in regard to the payment of the 25% of the amount or the instalments as directed above, then the directions issued by this Court to waive the further interest will stand vacated and the petitioner will be liable to pay not only the said interest but also the penal interest as well. With these observations and directions, the Writ Petition (Civil) stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/-