K. Naniamma and others v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 6TH DAY OF APRIL 2017/16TH CHAITHRA, 1939 WP(C).No. 4572 of 2014 (V) --------------------------- PETITIONER(S): ------------- 1. K. NANIAMMA, PUTHENPURAKKAL, ERUMAKUZHY, NOORANAD P.O., ALAPPUZHA-690504. 2. R.PRASAD, PUTHENPURAKKAL, ERUMAKUZHY, NOORANAD P.O., ALAPPUZHA-690504. 3. P.N.PRASANNA, PUTHENPURAKKAL, ERUMAKUZHY, NOORANAD P.O., ALAPPUZHA-690504. 4. P.N.PRAMEELADEVI, PUTHENPURAKKAL, ERUMAKUZHY, NOORANAD P.O., ALAPPUZHA-690504. BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN RESPONDENT(S): -------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (S) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE LAND REVENUE COMMISSIONER, COMMISSIONERATE OF LAND REVENUE, VAZHUTHAKKAD, THIRUVANANTHAPURAM-695023. 3. THE DISTRICT COLLECTOR, ALAPPUZHA DISTRICT, ALAPPUZHA-688001. 4. THE TAHSILDAR, MAVELIKARA TALUK, MAVELIKARA-690101. 5. THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, THIRUVANANTHAPURAM-695033. R3 BY ADV. GOVERNMENT PLEADER, SMT.RAJI T BHASKAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CONTD.... :2: WP(C).No. 4572 of 2014 (V) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- P1: COPY OF THE LETTER GIVEN BY THE 5TH RESPONDENT DATED 8.9.2008. P2: COPY OF THE CHALAN RECEIPT DATED 20.10.2008 SHOWING THE REMITTANCE OF RS.5,44,432/-. P3: COPY OF THE CHALAN RECEIPT DATED 17.11.2008 SHOWING THE REMITTANCE OF RS.4,00,000/-. P4: COPY OF THE COMMUNICATION SENTY BY THE 5TH RESPONDENT AS NO.T5-99/79 DATED 26.07.2010. P5: COPY OF THE REPRESENTATION FILED BY THE FIRST PETITIONER BEFORE THE 4TH RESPONDENT DATED 18.03.2011. P6: COPY OF THE LETTER WRITTEN BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT AS NO.B6-01/79-ABK DATED 19.06.2012. P7: COPY OF THE REPLY OBTAINED UNDER RIGHT TO INFORMATION ACT FROM THE 3RD RESPONDENT DATED 9.5.2013. P8: COPY OF THE COMMUNICATION GIVEN BY THE FIRST RESPONDENT TO THE FIRST PETITIONER AS NO.30215/S3/2013/REVENUE DATED 15.01.2014. RESPONDENT(S)' EXHIBITS : NIL ----------------------- //TRUE COPY// P.A. TO JUDGE SKS **DEVAN RAMACHANDRAN (J.) ================== W.P.(C.) No. 4572 of 2014 --------------------------------------Dated this the 6[th ] day of April, 2017** ## **JUDGMENT** The 1[st] petitioner is the wife of Sri.K.Raghavan and the petitioners 2 to 4 are his children. It is stated that Sri.Raghavan died on 21.09.1999. The petitioners say that while Sri.Raghavan was alive, he had been involved in an Abkari business of retail of toddy, which led to certain liabilities. For recovery of such liabilities, the Government issued orders buying the land belonging to Sri.Raghavan and treated it as a bought-in-land in the year 23.01.2003. They say that subsequently, as per Ext.P1, Sri.Raghavan was offered an opportunity to close the entire liability under an extant Amnesty Scheme and as per Exts.P2 and P3, the entire amounts under the said scheme was paid by the W.P.(C.) No.4572 of 2014 2 petitioner. The discharge of the entire liability, the petitioner asserts, is evidenced from Ext.P4 letter of the Dy.Commissioner of Excise. 2. After the liability was so discharged, the petitioners preferred Ext.P5 request before the Tahsildar for return of the land on the ground that the liability, for which it was treated as bought-in, has been already discharged. It appears that Exts.P6, P7 and P8 recommendations were made for such purpose by both the Tahsildar and District Collector and that such recommendations reached the office of the Land Revenue Commissioner. However, subsequently as per Ext.P8 order, the Government rejected the request of the petitioners on the ground that their request for return of the land is not possible in terms of the Government order dated 01.03.2013. 3. The petitioners, therefore, impugn Ext.P8 order on various grounds, but primarily on the ground that the W.P.(C.) No.4572 of 2014 3 Government orders referred to there in, is not applicable to them, since they have been issued much later than the alleged sale conducted by the Government. 4. Heard Sri.Dr.K.P.Satheesan, the learned Senior Counsel assisted by Sri.Sudhin and the learned Government Pleader appearing for the respondents. 5. I see that the only reason stated in Ext.P8, as has been rightly contended by the learned Senior Counsel, is that there is a Government order dated 01.03.2013, which prohibits consideration of any such application, if it is not made within five years from the date on which the sale is conducted. This order has been appended to the counter affidavit, filed on behalf of the 3[rd] respondent, as Ext.R3(a). I see that Ext.R3(a) is dated 01.03.2003, obviously much later than the date on which the petitioners' property was put to sale. 6. I also notice that the Government was not in a W.P.(C.) No.4572 of 2014 4 position to take over the property on account of the civil suit that was filed by the petitioners, namely O.S.No.80/1997 on the files of the Sub-court, Thiruvananthapuram. The fact that they were not able to take possession of the property has been admitted to by the concerned Authorities in Ext.P6 report of the Tahsildar and it appears to have been taken cognizance of by the District Collector, while issuing Ext.P7. 7. As noticed by me above, since Ext. R3(a) Government order has been issued much later than the date on which petitioners' property was put to sale, and since the said order cannot have any retrospective operation, it is being only an executive order, I do not think that the stand of the Government in Ext.P8, that the application of the petitioners cannot be considered, since it is beyond five years from the date of the sale, can be legally countenanced. I am certain that Ext.P8 order, therefore, cannot find sustenance in law. However, I do not propose to W.P.(C.) No.4572 of 2014 5 go into the merits of the case of the petitioners in detail, since I deem it necessary that it be considered and evaluated by the competent Authority. 8. I also take cognizance of the fact that any action under the Revenue Recovery Act can be pursued and completed by the Authorities only under the Mandatory provisions of Section 50 of the Revenue Recovery Act, 1968. I also notice the judgment of a Single Judge of this Court in **Kochadai @ Mookiah and others v. Special Tahsildar and others [1996 KHC 238]** , wherein the principles relating to such sale is declared, but I do not see that these principles have been adverted to by the competent Secretary while issuing Ext. P8 order. 9. In such circumstances, I quash Ext.P8 so as to pave way for a fresh enquiry at the hands of the competent Secretary of Government of Kerala, which consideration shall be made _dehors_ Ext.R3(a) Government order and on W.P.(C.) No.4572 of 2014 6 the merits of the claim of the petitioners, based on his assertions and materials that is available on record. I direct the competent Secretary of the Government to complete the exercise after adverting to all the submissions and also the judgment in **Kochadai (Supra)** mentioned above, after affording an opportunity of being heard to the petitioners, as expeditiously as possible but not later than three months from the date of receipt of a copy of this judgment. This writ petition is thus ordered. Sd/- **DEVAN RAMACHANDRAN JUDGE** SKS //TRUE COPY// //P.A. TO JUDGE//