IN THE HIGH COURT OF KERALA AT ERNAKULAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 5TH DAY OF APRIL 2016/16TH CHAITHRA, 1938** **WP(C).No. 28575 of 2013 (V) ----------------------------** **PETITIONER(S): -------------** **P.A.MOHAMMED SARDAR, AGED 47 YEARS, S/O.ABDUL KHADAR, PANIKKARUKUDI HOUSE, CHELAMATTOM NOW RESIDING AT KANJIRAKKADU KARA, RAYONPURAM P.O, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.SIRAJ KAROLY** **RESPONDENT(S): -------------1. THE VILLAGE OFFICER PERUMBAVOOR VILLAGE, PERUMBAVOOR-683542 KUNNATHUNADU TALUK. 2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY) TALUK OFFICE, KUNNATHUNADU, PERUMBAVOOR-683 542. 3. THE TAHSILDAR, KUNNATHUNADU TALUK TALUK OFFICE, PERUMBAVOOR, ERNAKULAM DISTRICT 683 542 4. THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANADU, KOCHI-30. 5. THE EXECUTIVE ENGINEER, PERIYAR VALLEY IRRIGATION PROJECT, DIVISION NO.II, ALUVA, ERNAKULAM DISTRICT 683 101. 6. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.695 001.** **R1-3,R4-6 BY GOVERNMENT PLEADER SMT.V.K.SATHI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 28575 of 2013 (V)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXT.P1 - TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT** **EXT.P2 - TRUE COPY OF THE LETTER DATED 20-10-2010** **EXT.P3 - TRUE COPY OF THE DEMAND NOTICE DATED 31-7-2013** **EXT.P4 - TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ON 17-10-2013** **EXT.P5 - TRUE COPY OF THE INFORMATION PROVIDED BY THE 4TH RESPONDENT DATED 19-10-2013** **EXT.P6 - TRUE COPY OF FORM NO.24 DATED 14-12-2012 ADDRESS BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.** **EXT.P7 - TRUE COPY OF THE INFORMATION PROVIDED BY THE 3RD RESPONDENT.** **RESPONDENT(S)' EXHIBITS : NIL** **-----------------------** ## **OKB** **// True copy //** **P.A. to Judge** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## W.P.(C) No.28575 of 2013 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 5[th] day of April, 2016 **==> picture [74 x 25] intentionally omitted <==** The petitioner has entered into an agreement with the 5[th] respondent for the improvement work of patrol road from chainage 8 Km to 9.7 Km of Kodanadu west branch canal, on 16.3.1994. Ext.P1 is the work order dated 24.3.1997 issued by the 5[th] respondent directing the petitioner to execute supplementary agreement. Though the petitioner has finished a substantial portion of the work, due to heavy rain he could not complete the work; and he has not executed the supplementary agreement as required under Ext.P1. According to the petitioner, thereafter the 5[th] respondent has not taken any action pursuant to Ext.P1. Though the petitioner has not sought for extension of the period after a long lapse of more than ten years, the 5[th] respondent issued Ext.P2 letter **WP(C).28575/13-V :2:** requiring the petitioner to remit an amount of Rs.1,91,112/- within two weeks from the date of Ext.P2, as liability towards the work covered by Ext.P1. According to the petitioner, since the 5[th] respondent has not taken any action against the petitioner for the last more than ten years, even if there was any liability, the same stands barred by limitation and no amount is recoverable from the petitioner invoking jurisdiction under the Revenue Recovery Act. Thus, the sum and substance of the contentions is that the liability stands barred by limitation caused by the efflux of time. But the respondents had issued Ext.P3 demand notice under Section 7 of the Revenue Recovery Act, after more than one decade. Hence this writ petition is filed with a prayer to issue a writ of certiorari calling for all records leading to Ext.P3 and quash the same. 2. The 5[th] respondent filed a counter affidavit denying the averments claiming the benefit of **WP(C).28575/13-V :3:** limitations put forward by the petitioner in the writ petition. The substantial contention challenging the claim of limitation, is extracted below: “3. It is submitted that registered notices were issued to the petitioner on 31.3.1997 and 24.4.1997 directing him to resume the work and complete it after executing supplemental agreement for the extension of Time of Completion granted upto 31.3.1997. The petitioner was not willing to resume the work. In this circumstance, the respondent was forced to terminate the agreement at his risk and cost vide office order No.A6-2071/94 dated 26.5.1997. After the contract was terminated, liabilities against the petitioner was fixed at Rs.5,62,602/- and requested to remit the dues vide registered letters dated 13.2.2008, 20.10.2008, 25.11.2009 and 16.12.2009. As the petitioner had not responded to make remittance of account as his liabilities, the defendant initiated RR proceedings for the recovery dues with effect from 26.5.1997”. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. The sum and substance of the arguments advanced by the learned counsel for the petitioner is **WP(C).28575/13-V :4:** that the claim against the petitioner under Ext.P3 demand notice was one barred under the Limitation Act. To substantiate the said contention, the learned counsel for the petitioner drew my attention to Exts.P4 & P5. Ext.P4 is the application filed by the petitioner seeking information as regards the date of requisition for revenue recovery made by the 4[th] respondent and Ext.P5 is the information given thereunder, by the 5[th] respondent. It is pointed out that the date of default shown in Ext.P3 is 16.5.1997; whereas, the date of requisition is 14.12.2012. Therefore the claim against the petitioner stands barred by limitation. Further, The learned counsel for the petitioner cited the decision reported in State of Kerala v. V.R. Kalliyanikutty [1999 (2) KLT 146 (SC)] and submits that no amount can be recovered by resorting to procedure under the Kerala Revenue Recovery Act, after a period of three years from the date on which the debt fell due on the petitioner. **WP(C).28575/13-V :5:** 5. On the other hand, the learned counsel for the 5[th] respondent advanced arguments to justify the realisation of amount due from the petitioner under Ext.P3. In view of the submissions made at the Bar, the point to be considered is whether the claim of the respondents under Ext.P3 is barred by limitation. 6. Going by paragraph 3 of the counter affidavit, which stands extracted above, it is seen that the respondent himself admitted that the liability against the petitioner was fixed at Rs.5,62,602/- and requested to remit the dues vide registered letters dated 13.2.2008, 20.10.2008, 25.11.2009 and 16.12.2009. Further, Ext.P5 reply given by the 5[th] respondent shows that the requisition for realisation of the amount was made on 14.12.2012. At the same time, Ext.P3 demand notice shows that the amount fell due on the petitioner on 26.5.1997. But, no proceedings had been initiated against the petitioner to recover the amount upto 13.3.2008. It is needless to say, the period of **WP(C).28575/13-V :6:** limitation is three years only. Thus, as rightly submitted by the learned counsel for the petitioner, one decade had been elapsed after the amount fell due on the petitioner, even if the first letter dated 13.2.2008 is taken as the date of first demand and the recovery proceedings under the Revenue Recovery Act had been initiated after a long period of fifteen years. The issue stands covered by the decision of the Apex Court referred above. The proposition that can be culled out from the above decision is as follows:- “The Kerala Revenue Recovery Act does not create any new right. It merely provides a process for speedy recovery of moneys due. Since this Act does not create any new right, the person claiming recovery cannot claim recovery of amounts which are not legally recoverable nor can a defence of limitation available to a debtor in a suit or other legal proceeding be taken away under the provisions of the Kerala Revenue Recovery Act. The provisions in the present case are statutory provisions for coercive recovery of amount due. Therefore, all claims which are legally recoverable and are not time-barred on that date can be recovered under the Kerala Revenue Recovery Act. Under Section 71 of the Kerala Revenue Recovery Act claims **WP(C).28575/13-V :7:** which are time-barred on the date when a requisition is issued under Section 69(2) of the said Act are not amounts due under Section 71 and cannot be recovered under the said Act.” 7. In view of the above decision, I am inclined to accept the arguments advanced by the learned counsel for the petitioner and I hold that the claim raised against the petitioner under Exts.P1 & P3 demand notices is barred by limitation. Consequently, Ext.P3 will stand quashed. This writ petition is disposed of accordingly. K. HARILAL, JUDGE okb/ 7.4