Renjitha v. Jayanthi D Kamath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **THURSDAY, THE 27TH DAY OF SEPTEMBER 2012/5TH ASWINA 1934** ## **WP(C).No. 18000 of 2007 (P)** **---------------------------** ## **PETITIONER(S):** **-------------** **RENJITHA, W/O.MOHAN KAMMATH, AGED 31, C.C.4/1251 B, NORTH CHERLAI, MATANCHERRY, VILLAGE, KOCHI TALUK.** **BY ADVS.SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI SRI.G.KRISHNAKUMAR** **RESPONDENT(S):** - **--------------** **1. JAYANTHI D.KAMATH, W/O.DINESH KAMATH, C.C.8/2215, RAMESWARAM PADINJARE MURI, MATTANCHERRY VILLAGE, KOCHI TALUK.** **2. GAUTHAM H.SHAH,** - **S/O.HARIVALLABH JAMNADAS, RAMESWARAM PADINJARE MURI, C.C.5/989, MATTANCHERRY VILLAGE, KOCHI TALUK.** **3. GOVINDA KAMATH, S/O.K.RAMACHANDRA KAMATH, RAMESWARAM PADINJARE MURI C.C.8/2215, MATTANCHERRY VILLAGE, KOCHI TALUK.** **4. SAILESH KUMAR, S/O.HARIVALLABH JAMNADAS, C.C.6/200, KAMADHENU APARTMENTS, RAMESWARAM PADINJARE, MURI, MATTANCHERY VILLAGE, KOCHI TALUK.** **5. SPECIAL TAHSILDAR (REVENUE RECOVERY), OFFICE OF THE SPECIAL TAHSILDAR, (REVENUE RECOVERY), KOCHI.** **6. THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM.** **LSN** ## **WP(C).No. 18000 of 2007 (P)** **7. CORP BANK HOMES LTD., 39/4083 B** **SANNIDHI ROAD, RAVIPURAM, ERNAKULAM KOCHI - 16 REPRESENTED BY THE CHIEF/SENIOR MANAGER.** **R5 & R6 BY GOVERNMENT PLEADER SMT SOBHA ANNAMMA EAPPEN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-09-2012, ALONG WITH WPC. 17504/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LSN** ## **WP(C).No. 18000 of 2007 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** - **EXT P1: COPY OF THE DOCUMENT NO. 6336/2004 DATED 29.11.2004 EXT P2: COPY OF THE DOCUMENT NO. 2239/I/2002 DATED 13.06.2002. EXT P3: COPY OF THE LEDGER FORM ISSUED BY THE CORPORATION BANK. EXT P4: COPY OF THE NECUMBRANCE CERTIFICATE ISSUED IN FAVOUR OF THE PETITIONER DATED 29.09.2004.** - **EXT P5: COPY OF THE ENCUMBRANCE CERTIFICATE DATED 12.04.05. EXT P6: COPY OF THE TAX RECIEPT DATED 25.09.2004. EXT P7: COPY OF THE LEGAL OPINION. EXT P8: COPY OF THE NOTICE DATED 04.01.2005 ISSUED BY THE 5TH RESPONDENT.** - **EXT P9: COPY OF THE EXPLANATION DATED 24.01.2005. EXT P10: COPY OF THE ORDER DATED 28.01.2006 OF THE 5TH RESPONDENT. EXT P11: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 6TH RESPONDENT BY THE PETITIONER DATED 14.02.2006.** - **EXT P12: COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER. EXT P13: COPY OF THE ORDER DATED 28.02.2005.** - **EXT P14: COPY OF THE APPLICATION TO RE CALL EXT P13. EXT P15: COPY OF THE NOTICE 23.05.2007. EXT P16: COPY OF THE NOTICE DATED 09.08.2006 ISSUED BY THE 7TH RESPONDENT.** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** **LSN** ## **ANTONY DOMINIC,J** ## **----------------------------------** ## **W.P.(C)No.18000 of 2007** ## **------------------------------------Dated this the 27[th ] day of September, 2012** ## **JUDGMENT** Respondents 3 and 4 were partners of a firm by name 'V.J. Enterprises'. The firm was a defaulter under the KGST Act for the year 1998-1999 to 2000-2001. After the default was committed, respondents 3 and 4 and two others, transferred a property owned by them to respondents 1 and 2 by Ext.P2 document dated 13.06.2002. From out of the property thus conveyed, 3 cents were purchased by the petitioner on 29.11.2004 as per Ext.P1 sale deed. The sale consideration paid is Rs.2,30,000/- out of which, according to her, Rs.2,25,000/- was paid by availing of a loan from the 7[th] respondent. Petitioner appears to have constructed a house in the property and is residing there with her family. 2. While so, Ext.P8 notice under Section 44 of the Revenue Recovery Act was issued to the petitioner in 2004 proposing to proceed against the property for realizing the sales tax liability of respondents 3 and 4. She filed objections, which were rejected by Ext.P10. Her representation to the District Collector W.P.(C).No.18000/2007 : 2 : also was rejected by Ext.P13. Thereafter, the Tahsildar issued Ext.P15 and it is at that stage, this writ petition is filed challenging the proceedings against the property. Petitioner also challenges the validity of Section 26A of the KGST Act. 3. As far as, the challenge against Section 26A of the KGST Act is concerned, that has already been upheld by this Court in **Jaya v. State of Kerala (2005(2) KLT 543)** . Once the validity of Section 26A is upheld, the recovery proceedings cannot be interfered with. 4. However, the counsel for the petitioner relied on a Division Bench judgment of this Court in Writ Appeal No.320 of 2012 and connected cases where, on equitable considerations, the following directions were issued: “ _3. After hearing both sides we feel appellant is entitled to at least an equitable relief to retain his property on payment of 50% of the value to be fixed by the Revenue authorities based on market conditions. We accordingly, dispose of Writ Petitions with the following conditions:_ _1. All sale proceeds will be withheld from two weeks from today on the appellant furnishing details of properties of the defaulter to the Tahsildar._ W.P.(C).No.18000/2007 : 3 : _2. On receipt of these details Tahsildar should immediately conduct enquiry about the availability of the properties with the defaulter namely partners of the defaulter firm and if details furnished are correct all such properties will be attached and proceeded against for recovery of arrears of tax._ _3. If the Tahsildar is of the opinion that details furnished does not reveal clear ownership of property of the defaulters and properties are free of encumbrance enabling recovery he will ignore the same and proceed to recover the arrears of 50% of the value of the building purchased by the petitioner from the defaulter and his wife._ _4. If recovery is proceeded against the appellant's property then we direct the Tahsildar to estimate the market value in consultation with the Executive Engineer of PWD and recovery proceedings against the appellant's property will be withdrawn on payment of the market value of the property._ _5. Whatever is paid will be set off from 50% of the market value and the balance will be recovered from the appellant._ _6. If appellant discharges liability at least with future interest then appellant should be permitted to discharge liability of the defaulter and in that event attachment on appellant's property will be revoked on settling the liability._ W.P.(C).No.18000/2007 : 4 : _7. Interest payable should be limited to the_ _period after effecting attachment on appellant's property. If any amnesty benefit is available to the defaulter the same should be granted to the appellant, if he proceeds to discharge the liability._ _The Writ Appeals are disposed of modifying the judgment of the learned Single Judge as above.”_ 5. According to the learned counsel, case of the petitioner stands on a similar footing and therefore, she seeks similar reliefs for her client also. 6. I heard the learned Government Pleader also in the matter. 7. On facts, I am satisfied that the case of the petitioner is similar to the case of the appellants in the Writ Appeal, mentioned above. Therefore, I see no reason to deny similar equitable relief to the petitioner's herein also. 8. Therefore, I dispose of this writ petition with the following directions: 1. All sale proceeds will be withheld for two weeks from today and the petitioner shall furnish details of the properties of the defaulters to the Tahsildar. W.P.(C).No.18000/2007 : 5 : 2. On receipt of these details Tahsildar should immediately conduct an enquiry about the availability of the properties with the defaulters namely partners of the defaulter firm and if details furnished are correct all such properties will be proceeded against for recovery of arrears of tax. 3. Revenue Recovery proceedings against the petitioner's property can also be continued. It is directed that the Tahsildar shall estimate the market value of the property covered by Ext.P1 in consultation with the Executive Engineer of PWD and if the petitioner pays the market value so assessed, recovery proceedings against the property will be withdrawn. Writ Petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE** ln