Lalitha V.K. and others v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945 ``` ## **`WP(C) NO. 14710 OF 2013`** ## **`PETITIONERS:`** - `1 LALITHA V.K. D/O.LATE V.K.KUTTAN, W/O.K.R.VIJAYARAGHAVAN, KALLIKKADAVIL HOUSE, MUTHARATHIKKARA.P.O., PARAPPUKKARA, THRISSUR DISTRICT.` - `2 SREENIVASAN S/O.LATE V.K.KUTTAN, VADAKKARA HOUSE, P.O.MANAKULANGARA, KODAKARA, THRISSUR DISTRICT-680684.` - `3 MOHANAN S/O.LATE V.K.KUTTAN, VADAKKARA HOUSE, P.O.MANAKULANGARA, KODAKARA, THRISSUR DISTRICT-680684.` - `4 SAKUNTHALA D/O.LATE V.K.KUTTAN, W/O.DR.K.U.GUNAPALAN, KUZHIPARAMBIL HOUSE, S.N.NAGAR, IRINJALAKUDA NORTH, THRISSUR DISTRICT-680125.` - `5 SHEELA D/O.V.K.KUTTAN, W/O.DR.P.D.VIDHYADHARAN, RESIDING AT PARUTHIAZHATHU, CHEMPMUKKU, KAKKANAD, ERNAKULAM DISTRICT. BY ADVS. SRI.K.SHRIHARI RAO SRI.K.S.BALAKRISHNAN SMT.N.SHOBHA` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.` - `2 THE DISTRICT COLLECTOR THRISSUR, PINCODE-680001.` - `3 THE TAHSILDAR IRINJALAKUDA P.O., MUKUNDAPURAM, PINCODE-680125.` - `4 THE VILLAGE OFFICER KODAKARA, PINCODE-680684.` - `5 THE SALES TAX OFFICER 4TH CIRCLE, THRISSUR DISTRICT, PINCODE-680001.` WP(C) No. 14710 of 2013 : 2 : ``` BY ADVS. SR.GP – SRI. SUNILKUMAR KURIAKOSE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No. 14710 of 2013 : 3 : ## **VIJU ABRAHAM , J. =========================== WP(C) No. 14710 of 2013 ============================ Dated this the 25[th] day of July, 2023** ## **J U D G M E N T** The above writ petition is filed seeking to quash Ext P14 and for a further direction to the respondents to reconvey the property to the extent of 70 cents of land in Sy.No. 916/3 of Kodakara Village to the petitioners forthwith and strictly in accordance with law. 2. Petitioners are the legal heirs of one Mr. V.K. Kuttan who was a proprietor of Foreign Timbers, Ollur and was an assessee on the roll of the 5[th] respondent. He was an exporter of rosewood and due to loss sufferred he stopped his business. As on the date of closing of the business there was sales tax arrears to the tune of Rs. 1,28,060/- for the assessment year 1983-84. 3. Revenue recovery proceedings were initiated against Mr. V.K. Kuttan and thereupon the property having an extent of 70 cents situated in Sy.No. 916/3 of Kodakara Village in the name of Sri. V.K. Kuttan was attached on 13.03.1987 and that said land was put in auction sale on 07.07.1989 and later adjourned to 23.10.1989 and 26.12.1989. As there was no bidders to purchase the property, Government itself purchased the above said property for 10 paise under Section 50(2)(i) of the Revenue Recovery Act 1968. While the WP(C) No. 14710 of 2013 : 4 : said proceedings were going on, the said Kuttan was aged 83 and has sufferred a massive paralysis of both his legs and was financially very weak and he could not remit the arrears and later he died on 22.06.2008. 4. In 2008, the petitioners and V.K. Kuttan came to know that there is an amnesty scheme 2008-2009 in settlement of the arrears. The defaulters were permitted to settle the arrears mainly principle amount and interest due and in the above said circumstances Kuttan submitted Ext P1 application for settlement of arrears under the above scheme agreeing that he can remit the arrears with penal interest. No order has been passed on the said application as contented by the petitioners. While so, Ext P2 circular was issued by the Commissioner of Commercial Taxes, Thiruvananthapuram regarding one time settlement of arrears under the amnesty scheme 2008-2009. 5. The 5[th] respondent addressed the 3[rd] respondent as per Ext P2. By Ext P3, the 5[th] respondent intimated the 3[rd] respondent that the final amount due from the defaulter is Rs. 5,59,895.84/-. After receipt of Ext P1 from V.K. Kuttan the 5[th] respondent sent a letter dated 17.04.2018 to the 2[nd] respondent intimating him that V.K. Kuttan has filed an application for settlement of arrears due under the Revenue Recovery Proceedings dated 10.02.1987 to collect the tax arrears etc, and the 3[rd] respondent was directed to WP(C) No. 14710 of 2013 : 5 : realize the said amount from said Kuttan. Above said letter was also addressed to the 2[nd] respondent, the District Collector, Thrissur. Thereafter the 2[nd] respondent, the District Collector sent a letter to the 3[rd] respondent Tahsildar to furnish details of the defaulted arrears and the property of the defaulter as per Ext P4 communication. V.K. Kuttan has also submitted Ext P5 representation dated 18.06.2007 in this regard before the 1[st] respondent. 6. The 3[rd] respondent has also attached certain properties other than the properties mentioned above for recovery of the above said arrears of sales tax for the year 1983-84. Pursuant to the direction issued by the 2[nd] respondent to the 3[rd] respondent, the 3[rd] respondent issued Ext P7 report intimating that 70 cents of land in the name of Kuttan is in the possession and custody of the 4[th] respondent is free from encumbrance etc. Tahsildar thereafter filed Ext P9 report regarding the property. 7. Challenging Exts P6 and P9, petitioners approached this Court filing WP(C) No. 17439/08 and this Court as per Ext P10 judgment permitted the petitioners to remit an amount of Rs. 6,87,956/- with interest from 17.04.2008 and other charges and held that if the said amount is paid the attachment upon the property will be lifted. The application submitted under amnesty scheme was left open. On the basis of the said judgment, the 5[th] petitioner herein who is the 1[st] petitioner in WP(C) No. 17439/08 remitted entire sales tax WP(C) No. 14710 of 2013 : 6 : arrears due under the Revenue Recovery Proceedings as per Revenue Recovery Proceedings i.e., Rs. 7,44,321/- including all charges before the 3[rd] respondent and Ext P11 receipt was also issued by the 3[rd] respondent in this regard. Thereafter 5[th] respondent issued Ext P12 certificate intimating that there are no sales tax arrears outstanding against the dealer V.K. Kuttan. After the issuance of Exts P11 and P12 the 4[th] petitioner approached the 2[nd] respondent with Ext P13 representation requesting to release the property taken over i.e. 70 cents of land in Sy.No.916/3 of Kodakara Village in her name and including the excess amount paid as per Ext P11. To the said request a reply was given as per Ext P14 intimating that the said property mentioned in Ext P13 has been taken over by the Government under bought-in land and therefore the land cannot be given back to her. The 2[nd] petitioner thereafter again represented before the 1[st] respondent as per Ext P15 to release the above said property of 70 cents in favour of legal heirs of V.K. Kuttan in the light of Exts P11 and P12. Petitioner relies on Ext P16 judgment wherein reliefs have been granted for release of the property to the petitioners herein taking into consideration the fact that the amounts have been paid in the amnesty scheme. 8. A detailed counter affidavit has been filed by the 3[rd] respondent mainly contenting that since the amount was in default the property was purchased by the Government for 10 paise under WP(C) No. 14710 of 2013 : 7 : Section 50(2) of the Kerala Revenue Recovery Act and the same was confirmed by the Revenue Divisional Officer as per order dated 23.08.1990. It is admitted by the respondents that V.K. Kuttan, the defaulter submitted a representation before the Government for permitting him to remit the arrears with interest for the release of one-sixth share of property attached and the property bid on behalf of the Government. Pursuant to the direction issued by this Court in WP(C) No. 17439/2008 the petitioners had remitted the total amount of arrears due along with collection charges and other charges. Therefore the attachment on the one-sixth share of the defaulter’s share of deceased wife’s property was lifted. The property has not been reconveyed because there was no specific direction from this Court to reconvey the bought in land in possession of the Government to the defaulter and relying on G.O.(Ms) 196/96/RD, reconveyance of land can be possible only for two years from the date of confirmation of sale and to a maximum of five years subject to certain conditions. The defaulter has not submitted an application for reconveyance of land within the prescribed time limit and that in Ext P10 judgment of this Court there is no direction to reconvey the bought-in land that was in possession of the Government. At this length of time application of reconveyance cannot be entertained. 9. It is an admitted fact that whatever dues towards sales tax arrears etc. has been remitted by the petitioners pursuant to the WP(C) No. 14710 of 2013 : 8 : direction issued by this Court in Ext P10 judgment, Ext P12 certificate issued by the Commercial Tax Officer, IVth Circle, Thrissur would reveal that there are no sales tax arrears outstanding against the dealer as per the officer records. In Ext P14 whereby the claim of the petitioners for reconveyance of the property was rejected, no valid reasons have been stated except saying that as per the relevant rules now in force, the application cannot be considered. The counter affidavit would show that though the amount due towards the Government have been fully paid by the petitioners, there is no direction in Ext P10 judgment to reconvey the bought-in land. 10. An order has been passed at the time of admission of the above writ petition wherein an interim stay was granted against assignment on registry, 70 cents of land in Sy.No. 916/3 of Kodakara Village which belongs to the predecessor in interest of the petitioners and that no strangers shall be inducted in the property pending disposal of the writ petition. The said interim order is still in force and therefore based on the interim order, the property has not been assigned to anyone nor any strangers have been inducted to the property. Eventhough in Ext P16 judgment, this Court has upheld the stand of the Government in not reconveying the bought-in land, issued an order to the effect that if the amount has already been paid the Government, the land should be reconveyed to the WP(C) No. 14710 of 2013 : 9 : petitioners. Ext P16 judgment has been followed in W.A. No. 967 of 2016 also. 11. In _**State of Kerala v. West India Steel Company Ltd. [Writ Appeal No. 1226/2018]**_ , the Division Bench of this Court as per judgment dated 08.02.2023 considered the question regarding the reconveyance of bought-in land. In the case considered by the Division Bench also, there was default in payment of Government dues and the property was auctioned as bought-in land for Rs. 1 on 04.07.2003 in favour of the Government. Later on the petitioners therein discharged the entire liability and therefore requested for reconveyance of land. The Division Bench, after considering the rival contentions, held in paragraphs 7 and 8 as follows: _“7. We cannot now remain oblivious to the fact that the Government, while dealing with the property of a citizen, has to act fairly and their action must be concomitant with the principles flowing out of Article 14 of the Constitution of India. If there is any vacuum in regard to the business of the Government in modulating or streamlining such recovery, it is for the Government to come out with guidelines or orders to bind all functionaries under the Government. The ignorance in administrative function cannot be taken as an advantage by the Government to wriggle out from the obligations, arising out of such fiduciary relationship that arose out of the act of acceptance of arrears of revenue after the purchase of the land as bought-inland. The fairness eschews the arbitrariness. The Government, having accepted the entire defaulted arrears of revenue, cannot now be heard to say that they will not re-convey the land purchased as bought-in-land._ _8. Based on the principles of fairness and principles of proprietary estoppel, we are of the considered view that the writ petitioner in this matter is entitled for re-conveyance of the land, provided he meets the entire expenses_ WP(C) No. 14710 of 2013 : 10 : _for re-conveyance of the land. We are of the view that the District Collector or an authorized person of the District Collector shall execute the deed, reconveying the land on meeting the entire expenses by the writ petitioner. Needful shall be done by the District Collector within a period of three months.”_ In the light of the declaration of law by the Division Bench in the decision cited supra, I am of the opinion that the stand taken by the respondent District Collector in Ext P14 order is illegal and liable to be interfered with. Ext P14 order is a non-speaking order without considering any of the contentions raised by the petitioners. It is also to be seen that the request of the petitioners for reconveying the bought-in land was dated 12.05.2009, which was also not considered while issuing Ext P14 order. 12. Therefore, Ext P14 is set aside with a direction to the 2[nd] respondent to consider the request made by the petitioners for reconveyance of the land having an extent of 70 cents in Sy.No. 916/3 of Kodakara Village back to the petitioners, in the light of the declaration of law made by the Division Bench of this Court in Writ Appeal No. 1226/2018. Petitioners will be free to produce additional documents and also a copy of the judgment in Writ Appeal No. 1226/2018 for consideration of the 2[nd] respondent. If the 2[nd] respondent on a proper consideration of the facts and circumstances of the case is satisfied that the case of the petitioners is similarly situated to the facts in Writ Appeal No. 1226/2018, necessary steps WP(C) No. 14710 of 2013 : 11 : shall be taken by the 2[nd] respondent to reconvey the property having an extent of 70 cents of land in Sy.No. 916/3 of Kodakara Village to the petitioners forthwith. A decision in this regard shall be taken after affording an opportunity of being heard to the petitioners at the earliest at any rate with an outer time limit of three months from the date of receipt of a copy of this judgment. Till a decision is taken as directed above, the interim order passed on 11.06.2013 staying the assignment of registry of 70 cents of land in Re.Sy. No. 916/3 of Kodakara Village and also from inducting any strangers into the property will continue to be in force. **Sd/VIJU ABRAHAM JUDGE** sbk/- WP(C) No. 14710 of 2013 : 12 : ## **`APPENDIX OF WP(C) 14710/2013`** ## `PETITIONER EXHIBITS` ``` EXHIBIT P1: COPY OF THE APPLICATION DATED 3.4.2008 OF SRI.V.K.KUTTAN UNDER THE AMNESTY SCHEME OF 2008-2009. EXHIBIT P2: COPY OF THE AMNESTY SCHEME 2008-2009. EXHIBIT P3: COPY OF THE LETTER DATED 17.4.2008 OF THE 5TH RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P4: COPY OF THE LETTER DATED 29.4.2008 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P5: COPY OF THE REPRESENTATION DATED 18.6.2007 OF SRI.V.K.KUTTAN TO THE 1ST RESPONDENT. EXHIBIT P6: COPY OF THE ATTACHMENT ORDER DATED 21.4.2008 OF THE 3RD RESPONDENT. EXHIBIT P7: COPY OF THE REPORT DATED 14.5.2008 OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P8: COPY OF THE REPRESENTATION DATED 26.5.2008 SUBMITTED BY V.K.KUTTAN TO THE 1ST RESPONDENT. EXHIBIT P9: COPY OF THE REPORT DATED 30.5.20087 OF THE 3RD RESPONDENT TO THE 5TH RESPONDENT. EXHIBIT P10: COPY OF THE JUDGMENT DATED 16.6.2008 IN WPC.NO.17439/2008 OF THIS HONOURABLE COURT. EXHIBIT P11: COPY OF THE RECEIPT DATED 31.7.2008 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P12: COPY OF THE CERTIFICATE DATED 5.9.2008 ISSUED BY THE 5TH RESPONDENT IN THE NAME OF V.K.KUTTAN. EXHIBIT P13: COPY OF THE REPRESENTATION DATED 12.5.2009 MADE BEFORE THE 2ND RESPONDENT BY THE 4TH PETITIONER. ``` ``` EXHIBIT P14: COPY OF THE LETTER DATED 25.2.2010 OF THE 2ND RESPONDENT TO THE 4TH PETITIONER. EXHIBIT P15: COPY OF THE REPRESENTATION DATED 16.3.2013 OF THE 2ND PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P16: COPY OF THE JUDGMENT DATED 9.7.2010 IN WA NO.1742/09 OF A DIVISION BENCH OF THIS HONOURABLE COURT. ```