E.S. Jayan v. The District Collector, Thrissur

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 16TH DAY OF JUNE 2014/26TH JYAISHTA, 1936 WP(C).No. 15204 of 2014 (A) ---------------------------- PETITIONER(S): -------------------------- E.S.JAYAN AGED 55 YEARS, S/O.SANKARAN, ELANJIKADAN HOUSE, MANAVALASSERY, MUKUNDAPURAM, THRISSUR DISTRICT BY ADVS.SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW SRI.M.G.KARTHIKEYAN RESPONDENT(S): ---------------------------- THE DISTRICT COLLECTOR THRISSUR 680001 BY GOVERNMENT PLEADER SRI. MANOJ KUNJACHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15204 of 2014 (A) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 PHOTOCOPY OF THE JUDGMENT DATED 8-10-2012 IN WPC NO 8929/2007 PASSED BY THIS HON'BLE COURT EXHIBIT P2 PHOTOCOPY OF THE EVIDENCE/STATEMENT OF THE DEPUTY TAHSILDAR(RR),MUKUNDAPURAM TALUK,DATED 18-1-2013 EXHIBIT P3 PHOTOCOPY OF THE REPORT DATED 13-2-2013 FILED BY THE TAHSILDR,MUKUNDAPURAM BEFORE THE DISTRICT COLLECTOR,THRISSUR EXHIBIT P4 PHOTOCOPY OF THE EVIDENCE/STATEMENT OF SMT RADHIKA JAYAN EXHIBIT P5 PHOTOCOPY OF THE EVIDENCE/STATEMENT OF SRI E.S JAYAN,DATED 15-03-2013 EXHIBIT P6 PHOTOCOPY OF THE EVIDENCE/STATEMENT OF TAHSILDAR,MUKUNDAPURAM EXHIBIT P7 PHOTOCOPY OF THE ORDER NO G2-57827/05 DATED 30-04-2013 PASSED BY THE RESPONDENT EXHIBIT P8 PHOTOCOPY OF THE JUDGMENT DATED 30-3-2013 IN WPC NO 13399/2013 PASSED BY THIS HON'BLE COURT EXHIBIT P9 PHOTOCOPY OF THE ORDER NO LR(B7) 27716/13 DATED 14-082013 PASSED BY THE COMMISSIONER OF LAND REVENUE EXHIBIT P10 PHOTOCOPY OF THE SHOW CAUSE NOTICE DATED 21-2-2014 ISSUED BY THE RESPONDENT EXHIBIT P11 PHOTOCOPY OF THE REPLYD ATED 26-2-2014 SUBMITTED TO THE RESPONDENT EXHIBIT P12 PHOTOCOPY OF THE LETTER DATED 1-6-2014 ISSUED BY THE RESPONDENT //True Copy// P.A. To Judge ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 15204 of 2014 - - - - - - - - - - - - - - - - Dated 16[th] June, 2014 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** Petitioner is aggrieved with Ext.P12 order, which declined the prayer of the petitioner to afford an opportunity to examine the Officers, whose reports are relied upon under Section 65 of the Kerala Revenue Recovery Act, 1968 (for short 'the Act'). The District Collector found in Ext.P12 that there is no provision which empowers the District Collector to function as a court or otherwise where oral and documentary evidence of witness are to be recorded. The learned counsel would submit that in fact, in the earlier remanded proceedings, wherein this Court had set aside the order made by the District Collector under Section 65 of the Act; the District Collector permitted examination of the Officers whose reports were relied upon. However, the order passed therein was set aside **WP(C).15204/14** 2 by the Appellate Authority and remanded for fresh enquiry under Section 65. The learned counsel would also contend that it is not, as if the District Collector, is powerless to summon a witness or conduct examination of such witness when the Kerala Enquiries and Summonses Act, 1960, specifically confers such power on the revenue Officers. 2. The learned Government Pleader however, would contend that even in the earlier proceedings, the District Collector had elaborately considered the issue and had passed Ext.P7 order which was set aside without any reason in Ext.P9 order. The learned Government Pleader also has a further contention that as revealed from Ext.P7, it is evident that the petitioner has admitted to an income and that alone would suffice in issuing an order under Section 65 condemning the petitioner to civil **WP(C).15204/14** 3 prison, since on that short admission, the deliberate attempt to evade recovery is evident. 3. Facts as revealed from the records are disturbing since the recovery steps initiated long back has not achieved finality and the petitioner and his wife have been successfully evading recovery on one ground or another, claiming that the properties are in the name of the petitioner's wife and not that of the petitioner. At the earlier instance when the petitioner was, confined to the civil prison under Section 65 of the Act, petitioner's wife was before this Court challenging such action. Ext.P1, set aside the order, for reason of violation of principles of natural justice. It was found by this Court in Ext.P1 that when the enquiry was scheduled for appearance of the defaulter, the counsel appeared and filed vakalath. The District Collector peremptorily 4 ## **WP(C).15204/14** declined the request for adjournment and concluded the proceedings. Subsequently as directed in Ext.P1, enquiry is said to have been conducted and an order passed as Ext.P7, which was set aside in appeal and remanded for fresh enquiry. Ext.P9 order though does not disclose any reason for remanding the matter, however has achieved finality, since the Government has not challenged it and the order contemplates a fresh enquiry under Section 65 of the Act. 4. It was on such remand, that the matter was again taken up by the District Collector, as is evident from Ext.P10. Ext.P10 show cause notice lists out the ingredients all of which are found in Section 65 of the Act. Petitioner has filed objection under Ext.P11 and had also sought for examination of certain witnesses whose reports are available in the file. The learned counsel for the petitioner would **WP(C).15204/14** 5 contend that since a fresh enquiry is contemplated, necessarily fresh reports would have to be called for. But this Court cannot countenance such argument. 5. It is for the District Collector to decide whether a fresh report is necessary and if the reports already available in the files are sufficient to go ahead with the proceedings. The District Collector could as well rely on the earlier reports as well or call for further reports to ensure whether the subsequent action of the petitioner could also be relied upon. Since it has been admitted that in the earlier proceedings, the Officers who had filed report before the District Collector, were examined and cross-examined, the District Collector could also look into such evidence adduced at the earlier point of time. Even if fresh enquiry is conducted, unless it is revealed that the 6 ## **WP(C).15204/14** petitioner has now “no means”, the District Collector could also rely on the earlier materials. If fresh reports are called for, there would be nothing improper in the District Collector summoning such Officers and affording an opportunity to the petitioner to contest such reports, as per the Act of 1960. 6. The Revenue Recovery Act does not provide for a specific statutory mandate in providing an opportunity to cross-examine the witnesses, but however, the same would be a part of the rule which mandates that none shall be condemned without a proper hearing. When reports of individual officers are relied upon by an authority who has been conferred with a power to detain a person in civil prison, necessarily, fair hearing would include cross-examination of such witnesses. **WP(C).15204/14** 7 7. The reliance placed by the petitioner on **Muralidharan v. State of Kerala (1995 (2) KLT 176)** and **Aboo v. District Collector (2001 (1) KLT 843)** , also persuades this Court to direct affording of an opportunity to cross-examine any witness if the same is found necessary. Ext.P12 necessarily has to be set aside. Fresh enquiry to be conducted would depend upon the material available in the record and any fresh material if called for, by the District Collector. Writ petition allowed setting aside Ext.P12 order and directing expeditious consideration of the matter under Section 65 of the Act. Parties are left to suffer their costs. ## **Sd/-** ## **K.VINOD CHANDRAN, Judge** ## Mrcs //True Copy//