Noushad K.M. v. Kottayam Municipality

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 11TH DAY OF JUNE 2018 / 21ST JYAISHTA, 1940** **WP(C).No. 6679 of 2011** **PETITIONER:** **NOUSHAD.K.M., S/O.A.K.MUHAMMAD, KIZHAKKEDATHU HOUSE, KARAPUZHA.P.O., KOTTAYAM.** **BY ADVS.SRI.M.P.MADHAVANKUTTY SMT.K.S.CHAITHANYA** **RESPONDENT(S):** **1. KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KOTTAYAM-686 001.** ## **2. SECRETARY,** **KOTTAYAM MUNICIPALITY, MUNICIPAL OFFICE, KOTTAYAM-686 001.** **3. DEPUTY TAHSILDAR (R.R.), KOTTAYAM-686 001.** ## **4. VILLAGE OFFICER,** **VILLAGE OFFICE, KOTTAYAM-686 001.** ## ***ADDL.R5 IMPLEADED** ## ***R5: DISTRICT COLLECTOR,** **KOTTAYAM.** ***ADDL.R5 IS IMPLEADED AS PER JUDGMENT DATED 11/6/2018.** **R1 & R2 BY ADVS. SRI.B.PREMNATH (E) SRI.PHILIP J.VETTICKATTU SRI.SIBY MATHEW R3 TO ADDL.R5 BY SR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-06-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts 23/6/2018** **WP(C).No. 6679 of 2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 COPY OF THE NOTICE DATED 05/08/2010 BEARING NUMBER R8-11013/97** - **EXHIBIT P2 COPY OF THE REPLY SUBMITTED BY THE PETITIONER. EXHIBIT P3 COPY OF THE APPLICATION SUBMITTED BEFORE THE 1ST RESPONDENT UNDER THE RIGHT TO INFORMATION ACT.** - **EXHIBIT P4 COPY OF THE LETTER DATED 08/11/2010 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P5 COPY OF THE DEMAND NOTICE DATED 27/3/1998 EXHIBIT P6 COPY OF THE DEMAND NOTICE DATED 28/05/2003 EXHIBIT P7 COPY OF THE DEMAND NOTICE DATED 01/09/2007 EXHIBIT P8 COPY OF THE COMMUNICATION DATED 24/09/2010 EXHIBIT P9 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER. EXHIBIT P10 COPY OF THE DEMAND NOTICE ISSUED BY THE 3RD RESPONDENT, DATED 31/1/2011** - **EXHIBIT P11 COPY OF THE DEMAND NOTICE DATED 13/09/2010** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT R2(a) COPY OF THE LETTER, DATED 23/7/1997 ISSUED BY THE PETITIONER TO THIS RESPONDENT** - **EXHIBIT R2(b) COPY OF THE RESOLUTION NO.70 TAKEN BY THIS RESPONDENT ON 8/3/1998.** ## **/TRUE COPY/** **P.A.TO JUDGE** **sts 23/6/2018** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## W.P.(C) No.6679 of 2011 ----------------------------------------- ## Dated this the 11[th] day of June, 2018 ## _**JUDGMENT**_ The prayers in this Writ Petition (Civil) filed on 3.3.2011 are as follows : - _(i) to issue a writ of certiorari and quash Exhibits-P10 and P11 demand notices as illegal and arbitrary ;_ - _(ii) to issue a declaration that the proceedings initiated against the petitioner pursuant to Exhibit-P1 notice is barred by the law of limitation._ - _(iii) to pass such other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of this case._ 2. The petitioner is mainly aggrieved by the impugned revenue recovery proceedings as per Exhibit-P10 dated 31.1.2011 and Exhibit-P11 dated 13.9.2010. This Court while admitting this Writ Petition had passed interim order dated 7.3.2011 directing that all further steps for recovery of amounts covered under Exhibit-P10 shall be kept in abeyance subject to the condition that the petitioner should remit a sum of Rs.50,000/- within three weeks therefrom. Later, by order dated 30.3.2011, the time for payment of Rs.50,000/- was extended until 30.4.2011 making it clear that on failure, the respondents will be at liberty to proceed with further steps. It is the case of the petitioner that he had deposited the amount of Rs.50,000/- in : **:2::** W.P.(C) No.6679/11 compliance with the interim orders passed by this Court. The interim order was extended until further orders as per the order dated 7.7.2011. 3. With the consent of both sides of all the parties as it is found that the District Collector, Kottayam, is a necessary party, it is ordered in the interest of justice that the District Collector, Kottayam, will stand impleaded as additional respondent No.5 in this W.P.(C). Learned Senior Government Pleader has taken notice for additional respondent No.5. 4. Heard Sri.M.P.Madhavankutty, learned counsel appearing for the petitioner, Sri.Philip J.Vettickattu, learned Standing Counsel for the Kottayam Muncipality appearing for respondents 1 and 2, and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 3, 4 and 5. 5. According to the petitioner, the impugned revenue recovery proceedings at Exhibit-P10 dated 31.1.2011 and Exhibit-P11 dated 13.9.2010 have been initiated for recovery of license fees allegedly due from the petitioner in respect of bunk No.3 allotted to him by the first respondent - Kottayam Municipality. The main contention of the petitioner is that the requisition made by the respondent Municipality to the revenue recovery authorities, which culminated in Exhibits-P10 and P11 proceedings, are barred by limitation in view of the dictum laid down by the Apex Court in the decision in _**State of Kerala v.**_ : **:3::** W.P.(C) No.6679/11 _**V.R.Kalliyanikutty**_ reported in _**1999 (2) KLT 146 (SC)**_ . In the said decision, the Apex Court has categorically held that the Kerala Revenue Recovery Act does not create any new right and it merely provides a process for speedy recovery of moneys due and since the Kerala Revenue Recovery 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 proceedings be taken away under the provisions of the Kerala Revenue Recovery Act. It was held by the Apex Court in paragraph-18 of the said judgment that claims which are time-barred on the date when a requisition is issued under Section 69 of the Kerala Revenue Recovery Act cannot be said to be amounts which are legally due under Section 71 and cannot be recovered by setting in motion revenue recovery proceedings under the Kerala Revenue Recovery Act. It will be profitable to refer to paragraphs 17 and 18 of the said judgment ## (See KLT report), which read as follows : _“17. In view of the interpretation which we have put on S.71 of the Kerala Revenue Recovery Act it is not necessary for us to consider whether by making a requisition under S.62(2) a creditor sets in motion a process of recovery which is a judicial process which would attract the Law of Limitation. There is a clear provision for adjudication under S.70(3) is not affected by S.72 of the said Act as was contended before us by the respondents. S.72 merely provides that every question arising between the Collector or the authorised officer and the defaulter relating to execution, discharge or satisfaction of a written demand issued under this Act will be determined not by a suit but under the provisions of the said Act. S.72 does not cover the right of a person making a payment under protest to institute a suit which is expressly provided for under S.70 sub-ss.70 and 7 1, amounts due under S.71 are those amounts which the creditor could have recovered had he filed a suit._ _18. In the premises under S.71 of the Kerala Revenue_ W.P.(C) No.6679/11 : **:4::** _Recovery Act claims which are time-barred on the date when a requisition is issued under S.69(2) of the said Act are not amounts due under S.71 and cannot he recovered under the said Act. Our conclusion is based on the interpretation of S.71 in the light of the provisions of the Kerala Revenue Recovery Act.”_ In the light of the abovesaid decision of the Apex Court, it is contended by the petitioner that the impugned demands are barred by limitation, etc. 6. In this regard, it is also relevant to note the provisions contained in Section 539 of the Kerala Municipality Act, 1994, which provides as follows : _“539. Limitation for recovery of dues.— (1) No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to a Municipality under this Act after the expiration of a period of three years from the date on which distraint might first have been made, suit might first have been instituted, or prosecution might first have been commenced, as the case may be, in respect of such sum:_ _Provided that in the case of assessments made under section 282 the said period of three years shall be computed from the date on which distraint might have been made, suit instituted, or prosecution commenced, after the assessment under the said section shall have been made._ _(2) Where any amount due to the Municipality has been barred by limitation under subsection (1) due to the default of not taking steps at the appropriate time, and it is found in a lawful enquiry that it was lost due to the default of any officer or officers, the amount so lost to the Municipality shall be realised with twelve per cent interest thereon from such officer or officers.”_ 7. Sri.Philip J.Vettickattu, learned Standing Counsel for the Kottayam Municipality appearing for respondents 1 and 2, would raise certain contentions touching on the factual aspects based on the transactions between the parties regarding allotment of bunk No.3 to the petitioner, which was made as per Exhibit-R2(b) proceedings dated 8.3.1998 based on Exhibit-R2(a) request dated 23.7.1997 of the : **:5::** W.P.(C) No.6679/11 petitioner, etc. and it is contended that the petitioner was a chronic defaulter and has never paid any other license fee and that the case of the petitioner that the bunk became unusable, it was removed from the said location, etc. are not proved to facts. Further it is the case of the respondent - Municipality that the petitioner has never informed the respondent- Municipality that the bunk has became unusable, etc. at any point of time prior to Exhibit-P8 dated 24.9.2010. Section 72 confers power on the Commissioner for land revenue and the Collector to adjudicate on every questions arising between the Collector or the authorised officer and the defaulter or his representative or any other person claiming any right through the defaulter relating to execution, discharge or satisfaction of a written demand issued under this Act, etc. Section 72 of the Kerala Revenue Recovery Act, 1968 provides as follows : > _“_ _**72. General bar to jurisdiction of civil courts** - (1) Except as otherwise expressly provided in this Act, every question arising between the Collector or the authorised officer and the defaulter or his representative or any other person claiming any right through the defaulter, relating to the execution, discharge or satisfaction of a written demand issued under this Act or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such demand, shall be determined not by suit, but by order of-_ _(i) the Commissioner of Land Revenue, where the Collector is a party to the question ;_ _(ii) the Collector, in other cases :_ _(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled decided or dealt with or to be determined by the Government, or the Commissioner of Land Revenue or the Collector or any officer or authority under this Act.”_ ## 8. In the instant case, it is seen that the impugned revenue : **:6::** W.P.(C) No.6679/11 recovery proceedings as per Exhibits-P10 and P11 has been initiated by the decision of the Deputy Tahsildar (Revenue Recovery) concerned. Therefore, the power is conferred on the Collector as per clause (ii) of Section 72(1) of the Kerala Revenue Recovery Act, 1968 to adjudicate on the abovesaid plea of limitation as raised by the petitioner. 9. Accordingly, it is ordered that it is for the petitioner to approach the Collector by filing a proper petition under Section 72(1) raising his contentions of time bar, etc. The petitioner will also ensure that the Kottayam Municipality represented by its Secretary, Kottayam, is also impleaded as a respondent in this petition that may be filed before the fifth respondent District Collector, Kottayam, under Section 72(1)(i) of the Kerala Revenue Recovery Act, 1968. Such a petition may be filed by the petitioner within one month from the date notified for receiving a certified copy of this judgment. Upon receipt of the said petition, respondent No.5 District Collector, Kottayam, will issue notice to the Kottayam Municipality, represented by its Secretary and after hearing both sides will take a considered decision on the abovesaid petition, especially on the point of limitation as can be canvassed by the petitioner. The Secretary of the Kottayam Municipality will give a detailed report regarding all aspects of the transactions between the petitioner and the Kottayam Municipality as regards the allotment of bunk No.3 and the said report should contain all the details from the : **:7::** W.P.(C) No.6679/11 allotment of the bunk up to all steps for sending the requisition to the revenue recovery authorities for recovery of the amounts allegedly due. A copy of the said report should also be given by the Kottayam Municipality to the petitioner. After hearing both sides, the Collector may decide the issue in accordance with law without much delay, preferably within a period of three months from the date of submission of such petition that may be filed by the petitioner herein. Until orders are passed by the Collector as aforestated all further coercive steps for effecting the impugned revenue recovery proceedings will be kept in abeyance. However, it is made clear that in case the petitioner does not file the abovesaid petition under Section 72(1)(i) of the Kerala Revenue Recovery Act before the District Collector, Kottayam, within the abovesaid period of one month as stipulated herein above, then the benefit of this direction ordering to keep in abeyance the impugned revenue recovery proceedings will stand automatically vacated without any further orders from this Court. The office of the Advocate General will ensure that a certified copy of the judgment is forwarded to the District Collector, Kottayam, for necessary action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **ALEXANDER THOMAS JUDGE** csl