P.I.MOHANAN v. Deputy Tahsildar (R.R.), Muvattupuzha Taluk Office, and AVOLY GRAMA PANCHAYATH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **TUESDAY, THE 12TH DAY OF MARCH 2013/21ST PHALGUNA 1934** **WP(C).No. 28336 of 2011 (N) ---------------------------** **PETITIONER(S):** **---------------** **P.I.MOHANAN, S/O. ETTIYATHI, AGED 55, PAZHAYIDATHU, ANICADU, AVOLY P.O. MUVATTUPUZHA, PIN-686 677.** **BY ADV. SMT.C.G.BINDU** **RESPONDENT(S):** **--------------** **1. DEPUTY TAHSILDAR (R.R.), MUVATTUPUZHA TALUK OFFICE, MUVATTUPUZHA, PIN-686 677.** **2. THE AVOLY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, AVOLY P.O., MUVATTUPUZHA PIN-686 677.** **R2 BY ADV. SRI.K.S.ARUN KUMAR R2 BY ADV. SMT.M.N.MAYA BY GOVERNMENT PLEADER SMT.K.A.SANJEETHA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WPC NO.28336/** 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1 : TRUE COPY OF THE NOTICE DTD.25.9.07 ISSUED BY THE 2ND RESPONDENT AVOLY GRAMA PANCHAYAT.** **EXT.P2 : TRUE COPY OF THE DEMAND NOTICE DTD.11.8.2011 ISSUED BY THE 1ST RESPONDENT. EXT.P3 : TRUE COPY OF THE GAZETTE NOTIFICIATION DTD.16.4.2005.** **EXTS. OF R2** **EXT.R2(a): TRUE DEMAND NOTICE DATED NIL. EXT.R2(b): TRUE DEMAND NOTICE DATED NIL. EXT.R2(c): TRUE DEMAND NOTICE DT 14/9/2010.** ## **//True Copy//** ## **PA to Judge** **Rp** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 28336 OF 2011** ## **===================** ## **Dated this the 12[th] day of March, 2013** ## **J U D G M E N T** Heard the learned counsel for the petitioner and the learned counsel for the respondent Panchayat. 2. The respondent Panchayat is the owner of a shopping complex at a place called Avoly. The shops were auctioned and the petitioner was the successful bidder of shop room bearing Door No.III/231. According to the petitioner, the period of the licence was two years from 01/4/2004 and the agreed licence fee was `440/- per month. It is also stated that the petitioner had deposited six months licence fee as advance. 3. Petitioner states that although he had made payments in time, later for reasons beyond his control, he committed default in paying the rent for some months and that immediately on the expiry of the licence period on 31/3/2006, the Panchayat forcefully took over possession of the room. It is also stated that in 2007, the room was auctioned and was given on lease to a third party. In spite of it, on 25/9/2007, Panchayat issued Ext.P1 notice requiring the petitioner to surrender key of the room and **WPC.No.28336/11** **:2 :** also informing him that a demand notice for the arrears is also enclosed. 4. However, notice under the Revenue Recovery Act was issued to the petitioner only by Ext.P2 dated 11/8/11 for the recovery of `55,142/- which is stated to have fallen in arrears on 01/4/2004. It is challenging the recovery proceedings thus initiated against the petitioner, he has filed this writ petition. 5. The contention raised by the learned counsel for the petitioner is mainly that the Apex Court has in its judgment in State of Kerala v. Y.R.Kalliyani Kutty (1999(2) KLT 146) held that only those debts which are legally recoverable can be recovered under the provisions of the Revenue Recovery Act. It is stated that in view of the provisions contained in Section 243 of the Kerala Panchayat Raj Act, 1994, on expiry of a period of three years from the date from which the debt has fallen due, the debt becomes time barred and therefore the recovery proceedings now initiated against the petitioner for the debt of 01/4/2004 is time barred. 6. However, on behalf of the respondent Panchayat, the contention raised in the counter affidavit is that although the period of the licence expired on 31/3/2006, petitioner did not **WPC.No.28336/11** **:3 :** surrender the room as claimed. According to them, Panchayat also did not took over forceful possession of the room. It is stated that the petitioner still retains possession of the room and that it was in those circumstances that Ext.P1 notice was issued to the petitioner on 25/9/2007 informing the petitioner that he is continuing to occupy the room after the expiry of the licence period unauthorisedly and without paying the licence fee. 7. It is stated that the position continued thereafter and on account of it, Exts.R2(a) (b) and (c) notices were issued in July, August and September, 2010 demanding licence fee for the period up to the date of issuing the notice. It is also stated that Ext.R2(b) was acknowledged by the petitioner on 26/8/2010, a copy of which has been produced by the counsel along with his memo dated 11[th] of March, 2013. On this basis, counsel contends that since the aforesaid demands were made on the petitioner within the three years from the date on which the arrears fell due, Section 243 has no application and therefore the Panchayat is entitled to recover the dues. 8. Thus in the light of the contentions raised by both sides, what arises for consideration is whether the recovery of the **WPC.No.28336/11** **:4 :** debt that is now sought to be realised form the petitioner is barred in view of the provisions contained in Section 243 of the Kerala Panchayat Raj Act. 9. A reading of Ext.P2 shows that the notice has been issued for the recovery of `55,142/- together with other charges and the debt is shown to have fallen due on 01/4/2004. However, the entire debt could not have fallen due on 01/4/2004 for the reason that the licensor-licencee relationship commenced only from that date. In any case, Exts.R2(a), (b) and (c) demand notices show that the amount demanded from the petitioner pertains to the period from 2004-05 to 2010-11. 10. Section 243 of the Kerala Panchayat Raj Act provides that no distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any tax or other sum due to a Panchayat under the Act or any rule or bye-law or order made under it after the expiration of a period of three years from the date on which the distraint might first have been made, suit might first have been instituted or the prosecution might first have been commenced, as the case may be, in respect of such tax or other sum. Therefore, the recovery proceedings can be only ## **WPC.No.28336/11** **:5 :** in respect of the amount due to the Panchayat for a period immediately preceding three years from the date on which the distraint is made, suit is instituted or the prosecution is commenced. 11. Admittedly in so far as this case is concerned, Ext.P2 revenue recovery notice was issued to the petitioner only on 11/8/11. This could not have in any case taken in liability of 200405 etc., because that is beyond the period of three years from the date of requisition under Section 69(2) of the Revenue Recovery Act, based on which the notice was issued on 11/8/11. 12. Although it is true that the counsel for the Panchayat argued that since demand notices were issued within a period of three years of the amount becoming due and that therefore Section 243 of the Kerala Panchayat Raj Act referred to above has no application, I am not in a position to accept the said plea of the learned counsel for the reason that the mere issuance of demand notices will not save the debt from becoming time barred. Thus, the resultant position is that since Ext.P2 demand notice issued by the 1[st] respondent for the recovery of the dues to the Panchayat includes amounts which have prima facie become time **:6 :** ## **WPC.No.28336/11** barred in view of Section 243 of the Kerala Panchayat Raj Act, necessarily the authorities should revise the demand and on that basis initiate fresh recovery action for the realisation of the portion of the debt which has not become time barred. Therefore, this writ petition is disposed of quashing Ext.P2 and leaving it open to the respondents to initiate fresh action against the petitioner for recovery of the debt which has not become time barred as on the date on which requisition under Section 69(2) was issued which resulted in Ext.P2 notice under the Revenue Recovery Act. ## **ANTONY DOMINIC, JUDGE** Rp