M.K. Basheer v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 26TH DAY OF AUGUST 2020/4TH BHADRA, 1942** ## **WP(C).No.40660 OF 2017(F)** ## **PETITIONER:** **M.K.BASHEER AGED 63 YEARS, S/O.KUNJUMOIDU, MAMMASRYI ILLATH, CHOONDAL P.O., THRISSUR DISTRICT.** **BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE (S) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DISTRICT COLLECTOR THRISSUR - 680 001. 3 THE REVENUE DIVISIONAL OFFICER THRISSUR - 680 001. 4 THE TAHSILDAR (REVENUE RECOVERY) THALAPPILLY, THRISSUR DISTRICT,PIN - 680 022. 5 THE VILLAGE OFFICER CHOONDAL VILLAGE,THRISSUR - 680 502. 6 THE COMMERCIAL TAX OFFICER SALES TAX DEPARTMENT,KUNNAMKULAM, THRISSUR DISTRICT,PIN - 680 523.** WPC No.40660/2017 : 2 : - **7 THE STATE TAX OFFICER - II KUNNAMKULAM,THRISSUR - 680 523.** **BY ADV. SRI.MOHAMMED ANZAR K.J., SPL.G.P. FOR REVENUE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC No.40660/2017 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 26[th] day of August, 2020**_ The petitioner seeks to quash Exhibit-P1 and to declare that the sale proceedings and the improper bidding of the 1/5[th] share of the petitioner over his ancestral property having an extent of 0.2546 Hectares of landed property comprised in Survey No.112/1 of Choondal Village in the name of the Government under Section 50(2)(i) of the Kerala Revenue Recovery Act as bought-in-land for Re.1, is illegal and is liable to be set aside. 2. The petitioner states that he was the Proprietor of Classic Rubbers and an assessee of sales tax. The business failed and sales tax for the years 1990–2000, 1993–1994, 2001–2002, 2002–2003 and 2003–2004 remained unpaid. Respondents 6 and 7-Tax Officers fixed the liability of the petitioner at ₹21,62,386/-. At the instance WPC No.40660/2017 : 4 : of respondents 6 and 7, respondents 2 to 5 initiated revenue recovery proceedings to realise the sales tax dues. The property standing in the name of the petitioner’s father late Sri. Kuju Moidu having an extent of 0.2546 Hectares comprised in Survey No.112/1 of Choondal Village, Thalappilly Taluk was attached. The petitioner had only 1/5[th] share of the property. The undivided property was notified for sale in public auction. In the absence of any bidder to purchase the property, the Government purchased the 1/5[th] share for Re.1 invoking Section 50(2) of the Kerala Revenue Recovery Act as per Exhibit-P1, on 03.10.2008. 3. The petitioner could not raise funds to clear sale tax arrears. However, the petitioner applied under Amnesty Scheme to reduce the arrears of sales tax. The petitioner also submitted an application before the first respondentState of Kerala to re-convey the property to the petitioner on payment of sales tax arrears. By Exhibit-P2, the first respondent directed the second respondent-District Collector to submit a detailed report regarding the issue. The 2[nd] WPC No.40660/2017 : 5 : respondent on 15.11.2017 intimated the 1[st] respondent that the Government has purchased the property as bought-inland and a partition suit is intended to be filed to take possession of the 1/5th share. The 1[st] respondent, however, has not taken a final decision on the representation of the petitioner. 4. The petitioner states that the sales tax arrears due from the petitioner has been settled in the Amnesty Scheme for ₹9,58,610/- as per Ext.P4 proceedings dated 02.11.2017. The petitioner has to pay the amount by 31.12.2017. The petitioner approached this Court apprehending that even if he pays the amount, the respondents may not re-convey the bought-in-land to the petitioner. 5. When this Writ Petition came up for hearing, this Court passed an interim order on 18.12.2017 to the effect that payment if any made by the petitioner in terms of Ext,P4 order will be subject to further orders to be passed by this Court. Pursuant to the orders of this Court, the petitioner remitted the amount demanded as per Ext.P4 before WPC No.40660/2017 : 6 : 31.12.2017 as evidenced by Ext.P5 series receipts. The petitioner has also remitted collection charges in respect of the revenue recovery proceedings as per Ext.P6. 6. The learned Special Government Pleader (Revenue) Advocate Mohammed Anzar contended that the writ petition is not to be entertained since the petitioner is guilty of delay and laches. The sales tax arrears are in respect of various periods starting from 1990 to 2004. Revenue recovery proceedings were initiated and culminated in sale of the undivided share of property on 03.10.2008. In the absence of satisfactory bids, the Government bought the land. The petitioner did not pay the dues and apply for reconveying the land within a reasonable time. The petitioner has approached this Court after a lapse of nine years of sale of the property. Therefore, the writ petition is only to be dismissed. 7. I have heard the learned counsel for the petitioner and learned Special Government Pleader representing respondents 1 to 7. WPC No.40660/2017 : 7 : 8. The attachment of the property and the sale thereof held on 03.10.2008 were in respect of undivided share of the petitioner in the property. The petitioner was not in actual and exclusive possession of the property when the sale was effected and the Government purchased the land. The pleadings would show that the petitioner has been trying to raise funds sufficient for the payment of sales tax arrears. Ext.P2 letter dated 25.03.2017 would show that the petitioner has been making representation to the respondents for reconveyance of the property. 9. It is to be noted that the Government also did not get possession of the undivided share of the property. Though the property was bought in the year 2008, no suit was filed to demarcate and take possession of the property of the petitioner. 10. At any rate, the petitioner has approached the respondents submitting himself to the Amnesty Scheme. The respondents by themselves permitted the petitioner to participate in the Amnesty Scheme and intimated to the WPC No.40660/2017 : 8 : petitioner the amounts to be paid to the Government to settle the issue of sales tax arrears. Such intimation was not pursuant to any orders of this Court. This Court passed an interim order only 18.07.2017 making it clear that payment made by the petitioner in terms of Ext.P4 intimation of the State Tax Officer will be subject to further orders to be passed by this Court. 11. This Court had occasion to consider a similar issue in _**Savithammal R. v. Tahsildar, Udumbanchola and others** [2016 (3) KLT 251]_ and held that when a defaulter makes payment and it was accepted by the Government, it can be said that he was encouraged to make such payment by the Government and in such circumstances, principle relating to proprietary estoppel would come into play and the defaulter is entitled re-conveyance of land. In the judgment in _**Chandrasekharan C.K. v. State of Kerala and others** [2018 (3) KLT 562]_ , a Division Bench of this Court held that when due to the payment made by the defaulter, the basis of sale itself is eroded, the State will not be justified in WPC No.40660/2017 : 9 : contending that there is no legal provision for reconveyance of bought in land. What is required by the State is not reconveyance, but restitution or return of the land to its original owner. 12. In this case, though the State bought the land for a consideration of Re.1, what was bought by the State is only the undivided share of the property belonging to the petitioner. The State was not at any point of time had the actual the possession of the land. In the meanwhile, the respondents permitted the petitioner to participate in the Amnesty Scheme and offered to settle the sales tax disputes by the petitioner paying an amount of ₹9,58,610/-, as per Ext.P4. In the circumstances, equity demands that the undivided share purchased by the respondents is restituted to the petitioner. In view of the above, the writ petition is allowed directing the respondents to issue orders immediately and take action to return the property covered by Ext.P1 order, after cancelling the sale and orders of confirmation, if any. WPC No.40660/2017 : 10 : This shall be done by the competent authority among the respondents as expeditiously as possible, but not later than two months from the date of receipt of a copy of this judgment. Sd/- **N. NAGARESH, JUDGE** aks/27/08/2020 WPC No.40660/2017 : 11 : ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE PROCEEDINGS NO.B11788/05/R.DIS DATED 03.10.2008 OF THE 3RD RESPONDENT. EXHIBIT P2. TRUE COPY OF THE PROCEEDINGS NO.1040706/S2/16/REV. DATED 25.03.2017 OF THE 1ST RESPONDENT.** **EXHIBIT P3. TRUE COPY OF THE PROCEEDINGS NO.G268555/16 DATED 15.11.2017 OF THE 2ND RESPONDENT.** **EXHIBIT P4. TRUE COPY OF THE PROCEEDINGS OF THE 6TH RESPONDENT DATED 02.11.2017 ALONG WITH THE INTIMATION OF PAYMENT OF ARREARS.** **EXHIBIT P5 TRUE COPY OF THE RECEIPT DT 30.12.2017 EVIDENCING THE REMITTANCE OF RS.3675/-. EXHIBIT P5(A) TRUE COPY OF THE RECEIPT DT 30.12.2017 EVIDENCING THE REMITTANCE OF RS.4,29,785/-.** **EXHIBIT P5(B) TRUE COPY OF THE RECEIPT DT 30.12.2017 EVIDENCING THE REMITTANCE OF RS.1,78,214/-.** **EXHIBIT P5(C) TRUE COPY OF THE RECEIPT DT 30.12.2017 EVIDENCING THE REMITTANCE OF RS.1,73,876/-. EXHIBIT P5(D) TRUE COPY OF THE RECEIPT DT 30.12.2017 EVIDENCING THE REMITTANCE OF RS.1,73,060/-. EXHIBIT P6 TRUE COPY OF THE RECEIPT DT 3.1.2018 EVIDENCING THE REMITTANCE OF RS.9,587/- AS COLLECTION CHARGES.**