S. Ashok Kumar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY ,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940** ## **WA.No. 1019 of 2018** **AGAINST THE ORDER/JUDGMENT IN WPC 14896/2017 of HIGH COURT OF KERALA DATED 17-11-2017** ## **APPELLANT/S:** **S.ASHOK KUMAR AGED 57 YEARS, S/O. K. SANKARAN VAIDYAN,SAROJA PHARMACEUTICALS, E.T.C.P.O.,KOTTARAKKARA, KOLLAM DISTRICT.** **BY ADVS. SRI.M.V.THAMBAN SMT.THARA THAMBAN SRI.ARUN BOSE SRI.B.BIPIN SRI.R.REJI** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM, PIN-695001. 2 THE DISTRICT COLLECTOR COLLECTORATE, KOLLAM-691013. 3 THE REVENUE DIVISIONAL OFFICER COLLECTORATE, KOLLAM-691013.** W.A 1019/2018 2 - **4 THE TAHASILDAR TALUK OFFICE, KOTTARAKKARA, KOLLAM-691506.** - **5 THE VILLAGE OFFICER KOTTARAKKARA VILLAGE, KOTTARAKKARA, KOLLAM691506.** - **6 THE COMMERCIAL TAX OFFICER KOTTARAKKARA, KOLLAM DISTRICT, PIN-691506. (CAUSE TITLE CORRECTED AS PER ORDER DATED 02/11/2018 IN IA.NO.03/2018) BY ADV. GOVERNMENT PLEADER** ## **OTHER PRESENT:** **SRI HANIL KUMAR SPL GP** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A 1019/2018 3 ## **J U D G M E N T** **The appellant is before this Court challenging the judgment of the learned Single Judge. The appellant had approached the revenue recovery authority for re-conveyance of the land, which was purchased by the Government as bought-inland, in proceedings initiated under the Revenue Recovery Act, 1968 (for brevity “the RR Act” only). Ext.P3 communication was issued to the petitioner by the Tahsildar, Kottarakkara directing remittance of market value for re-conveyance of the property. The direction for remittance of market value is as per Ext.R4(a) dated 11.02.2016. The market value was assessed at Rs.4,96,000/-. The learned Single Judge considering the challenge, directed deposit of an amount of Rs.4,96,000/- together with interest at the rate of 6% per annum within six months; the interest to run from the date of the** W.A 1019/2018 4 **judgment. On such remittance, the learned Single Judge directed re-conveyance of the property to the petitioner. The petitioner is in appeal before this Court against the aforesaid judgment.** **2. The learned Counsel appearing for the appellant submits that the proceedings were taken on the basis of a sales tax assessment proceeded with for various years, which were set aside in appeal by Ext.P1 and remanded for fresh consideration. On further assessments being made, the petitioner had settled the amounts in an Amnesty Scheme as is seen from Ext.P7 depositing a total amount of Rs.57,239/-. It is after the said settlement that the petitioner sought for re-conveyance of the lands before the Government. It is submitted that the petitioner is still in occupation of the residential building situated in the land and the Government has not taken any steps to take over the said property. It is harsh to** W.A 1019/2018 5 **direct the petitioner to pay the market value of the land, especially since, the petitioner had settled the dues under an Amnesty Scheme brought out by the Government.** **3. The learned Special Government Pleader however, would oppose the prayer for re-conveyance specifically relying on Exts.P11 and P12 notifications. The respondent was a defaulter, against whom proceedings were initiated under the RR Act. The bought-in-land proceedings were also concluded as per Section 50 of the Act. The defaulter could seek for re-conveyance of the land initially, within two years, which period stood extended to 5 years on depositing the entire dues to the Government. The petitioner had not made any such attempt and had merely settled the dues under the Amnesty Scheme which was long after the period prescribed in Exts.P11 and P12 notifications. There is no cause for any re-conveyance of the** W.A 1019/2018 6 **property or cancellation of the bought-in-land proceedings; is the specific contention. It is also pointed out that, earlier the petitioner had sought such re-conveyance which was declined by another Single Judge by Ext.P6 judgment. The judgment having become final for reason of the petitioner having not challenged it, there is no scope for interference to the bought-in-land proceedings, is the defence.** **4. The Counsel appearing for the appellant and the learned Special Government Pleader relies on** _**2010 (3) KHC 381 (State of Kerala v. George Jacob)**_ **. Before we proceed with the matter we have to look at the reliance placed by both Counsel on the aforesaid judgment. That was a case in which for abkari dues, proceedings were taken against a property and since there were no bidders bought-inland proceedings were concluded. In that case the Assistant Commissioner credited an amount of** W.A 1019/2018 7 **Rs.8,44,800/- towards the dues of the defaulter, to be adjusted on the interest portion, taking it as notional value of the property. The defaulter therein had also later settled the entire dues under the Amnesty Scheme. Having settled the dues under the Amnesty Scheme, which also stipulated withdrawal of RR proceedings, the defaulter was before this Court seeking cancellation of the RR proceedings as also re-conveyance of the land purchased in the name of the Government. The learned Single Judge allowed the defaulter's prayer which came up in appeal; as initiated by the State. In appeal, the learned Judges found that there could be no cancellation effected of the RR proceedings and also referred to the notifications issued by the Government which had provided a time for such re-conveyance on an application made after settlement of the entire dues. Re-conveyance was found to be not possible in such circumstance,** W.A 1019/2018 8 **where bought-in-land proceedings were concluded. This is the portion which the learned Special Government Pleader relies on. After having so declared the law the learned Judges also looked at the facts with an equitable eye. Having found that the entire dues were paid up, the Division Bench of this Court invoking the equitable jurisdiction, directed re-conveyance of the property on deposit of Rs.8,44,800/- which was the notional value of the property assessed and which was applied towards the dues for setting off a portion of the interest due. The bought-in-land proceedings were set aside and the Government was ordered to re-convey the property. This is the portion which the learned Counsel appearing for the appellant relies on.** **5. In the present case, we see that there were proceedings initiated by the Sales tax authorities for the assessment year 1992-93, 95-96** 9 W.A 1019/2018 **and 96-97 against the petitioner. The demands raised on the assessment orders were taken for recovery and proceedings initiated against the property of the petitioner. We called for the records of the revenue recovery sale proceedings which were placed before us by the learned Special Government Pleader. We see from the records that this was not the only dues on which recovery was proceeded against, on the subject property. There were also other dues which were pending against the petitioner. It is also seen from Ext.P6 that there were assessment orders passed against the father of the petitioner relating to earlier years which were produced as Exts.P1 and P2 in WP(C) No.25573/2010. Be that as it may, we see from the records that the proceedings where sales proceedings were scheduled on various dates on which there were no bidders. It is also seen from the records that no bidders turned up, on the various dates on which auction** W.A 1019/2018 10 **was held, obviously for reason of various other recovery also pending against the property. In any event, on 28.02.2005 the sale was again adjourned since there were no bidders. The sale was adjourned to 14.03.2005 within the 60 day period as provided under Section 50. On 14.3.2005 also there were no bidders and hence the property was purchased under Section 50 for a nominal amount of Re.1/-. The said proceedings were confirmed on 2.2.2006.** **6. It is subsequent to the sale proceedings and the confirmation of sale that Ext.P1 order was passed on 09.05.2006. We also see from the assessment order that there was a remand made and the assessment orders in appeal were set aside for reason of no notice having been issued to the assessee. Further it is also to be noticed that there were demands pending as against the father of the petitioner which was also liable to** W.A 1019/2018 11 **be recovered from the property. We agree with the Division Bench judgment in** _**George Jacob**_ **that the facts of the case does not warrant any revocation of bought-in-land proceedings. However, we are of the opinion that the facts herein would also commend us to invoke the equitable jurisdiction as available to this Court under Article 226, especially noticing the fact that the petitioner had been continued in the property, all these years almost 12 years from the date of confirmation of the bought-in-land proceedings. In such circumstance, we directed the learned Government Pleader to file a statement as to the exact dues pending as on the date on which the Amnesty Scheme was applied, without giving the benefit under the Amnesty scheme. An affidavit has been filed showing the amounts due would be Rs.3,44,743/-. This amount is after deducting what has been paid under the Amnesty Scheme.** W.A 1019/2018 12 **7. In such circumstances, on equitable consideration the petitioner would be granted a time of five months from today to make the deposit of Rs.3,44,743/-. If the said amounts are not deposited on or before 02.04.2019, the bought-in-land proceedings would be confirmed. If the petitioner pays the said amount on or before the stipulated date before the 4[th] respondent, the 4[th] respondent shall accept the amounts in satisfaction of the sales tax dues of the petitioner and his father and cancel the bought-in-land proceedings and there shall be no separate collection charges levied on the petitioner under the Revenue Recovery Act. It is made clear that the amounts paid in consequence of the directions herein satisfies only the sales tax dues in respect of which revenue recovery proceedings were taken; in the course of which the property was bought in the name of the Goverenment for a nominal amount of Re.1/-. An** W.A 1019/2018 13 **attachment or charge with respect to any other dues would subsist.** **The appeal is disposed of. No order as to** **costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/ASHOK MENON JUDGE** W.A 1019/2018 14 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-1** **TRUE COPY OF G.O.(MS) NO.112/16/REVENUE DATED 11/2/2016**