Suma Mathew v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** ## **THURSDAY, THE 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934** ## **WP(C).No. 32227 of 2010 (C) ---------------------------** ## **PETITIONER:** ## **-------------** **SUMA MATHEW, D/O.C.L.MATHEW, SIBI VILLA, CHENNAPPARA, ODANAVATTOM, KOTTARAKKARA KOLLAM, DISTRICT.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENTS:** **------------** **1. STATE OF KERALA, REP.BY PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM -695001.** **2. DISTRICT COLLECTOR, COLLECTORATE, KOLLAM DISTRICT 691001.** **3. REVENUE DIVISIONAL OFFICER, KOLLAM- 691001.** **4. TAHSILDAR, TALUK OFFICE, KOTTARAKKARA TALUK, KOLLAM DISTRICT-691506.** **5. THE VILLAGE OFFICER, ODANAVATTOM VILLAGE, KOTTARAKKARA,KOLLAM DISTRICT-691506.** **6. KERALA CASHEW WORKERS RELIEF & WELFARE FUND BOARD, REP.BY CHIEF EXECUTIVE, KOCHUPLAMOODU, KOLLAM-691006.** **BY ADV. SRI.M.K.CHANDRA MOHANDAS** **BY SPECIAL GOVERNMENT PLEADER FOR REVENUE, SRI.P.K.SOYUZ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 32227 of 2010 (C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXT.P1**|**: TRUE COPY OF THE SALE CONFIRMATION ORDER OF THE THIRD**| |---|---| ||**RESPONDENT.**| |**EXT.P2**|**: TRUE COPY OF THE REQUEST OF THE ASSISTANT COMMISSIONER OF**| ||**SALES TAX.**| |**EXT.P3**|**: TRUE COPY OF THE APPLICATION OF THE PETITIONER DATED**| ||**5.4.2006.**| |**EXT.P4**|**: TRUE COPY OF THE RECEIPTS ISSUED BY THE FOURTH RESPONDENT.**| |**EXT.P5**|**: TRUE COPY OF THE APPLICATION OF THE PETITIONER BEFORE THE**| ||**HON'BLE REVENUE MINISTER.**| |**EXT.P6**|**: TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT.**| ## **RESPONDENTS EXHIBITS:NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE.** ## **ANTONY DOMINIC,J** **----------------------------------** **W.P.(C)No.32227 of 2010 ------------------------------------Dated this the 20[th ] day of September, 2012** ## **JUDGMENT** Heard the counsel for the petitioner and also the learned Government Pleader. 2. There were two Revenue Recovery requisitions against the petitioner. First one was issued by the Sales Tax Authorities and the second one was issued by the 6[th] respondent. On account of the non-payment of the liability, the proceedings culminated in the sale of the petitioner's property having an extent of 14.3 Ares of property comprised in R.S.No.169/8 of Odanavattom Village in Kottarakkara Taluk. There were no bidders and, therefore, the State purchased the property as bought-in-land on 09.10.2003. The sale was also confirmed on 19.04.2004. 3. In the meanwhile, against the assessment under the Sales Tax Act, the petitioner had filed an appeal. That appeal was allowed and the assessment order itself was invalidated. In view of the above, the Sales Tax Authorities issued Ext.P2 W.P.(C).No.32227/2010 : 2 : letter dated 14.03.2005 withdrawing the Revenue Recovery requisitions itself. Thereupon, the petitioner submitted Ext.P3 dated 05.04.2006 requesting to return the property and also to permit him to pay the dues of the 6[th] respondent and settle the liability on that basis. Although, the property was not returned, he was permitted to discharge the liability due to the 6[th] respondent. Accordingly, he discharged the entire liability, which has been acknowledged by the Revenue Recovery Authorities by Ext.P4. The fact that their liability has been discharged by the petitioner in full, has been confirmed before this Court by the standing counsel for the 6[th] respondent also. 4. Thereupon, the petitioner submitted Ext.P5 representation requesting for returning the property and by Ext.P6 order that representation was rejected by the Government stating that the petitioner made the application beyond two years from the date of confirmation of sale and therefore, his request cannot be considered. It is thereupon, this writ petition has been filed. W.P.(C).No.32227/2010 : 3 : 5. Counsel for the petitioner raised two contentions. One is that the liability has been discharged in its entirety and that therefore, the property ought to be returned to him. He also says that by Ext.P2, the Sales Tax Department had withdrawn the Revenue Recovery requisition itself and therefore, at that stage, the only requisition that survived was the requisition issued by the 6[th] respondent. It is stated that in such circumstances, the Government could not have purchased the property on its own and that the Government's action in purchasing the property and appropriating the same is against the principles laid down by this Court in **District Collector v. Subaida Beevi (2010 (1) KLT 913).** 6. However, the learned Government Pleader justified Ext.P6. According to him, the mere fact that the liability has been discharged does not entitle the defaulter to return the property unless he applied to have the sale set aside or made application for returning the property within two years from the date of confirmation of the sale, as laid down in the Government Order dated 09.02.1968 and 22.03.1996. It is W.P.(C).No.32227/2010 : 4 : stated that this requirement has been upheld by this Court judgments in **State of Kerala v. George Jacob(2010 (3) KLT 483)** and **Ashok Kumar v. State of Kerala (2012(2) KLT 164)** . 7. Having considered the rival submissions, I am satisfied that the petitioner is entitled to succeed in this writ petition. Irrespective of the technicalities involved, fact remains that the property was sold based on a requisition issued by the Sales Tax Authorities and the 6[th] respondent. Admittedly, once the appeal filed by the petitioner against Sales Tax assessment has been allowed, the very basis of the requisition is lost and on that basis, the requisition itself was withdrawn. Therefore, that liability cannot be now held against the petitioner for any purpose. As far as the liability due to the 6[th] respondent is concerned that also has been discharged as per Ext.P4 and this fact is confirmed by the counsel appearing for the 6[th] respondent also. In such circumstances, the Government cannot behave like a private money lender and appropriate the property of poor citizens and raise technical arguments before this Court. W.P.(C).No.32227/2010 : 5 : 8. Insofar as, the contention that the petitioner did not apply within two years as prescribed in the Government Order is concerned, in my view, that also cannot apply in a case where the basis of the sale itself has been lost. Therefore, neither the Government Order nor the judgments of this Court requiring compliance thereof can have any application to the facts of this case. 9. There is yet another aspect of the matter, once by Ext.P2, the Revenue Recovery requisition has been withdrawn by the Sales Tax Authorities, the sale could have been only for the dues of the 6[th] respondent. The 6[th] respondent is an institution, the dues of which, are recovered under the Revenue Recovery Act based on the notification issued under Section 71 of the said Act. When the recovery proceedings are initiated in the case of such an institution, if the property is brought for sale, the Government cannot purchase the property as boughtin-land, it being only a recovering agent. On the other hand, even if the property has been purchased, the same can only be on behalf of the institution concerned. This principle has been W.P.(C).No.32227/2010 : 6 : upheld by this Court in **District Collector v. Subaida Beevi (2010 (1) KLT 913)** . In this case, the Government have no contention that the property was purchased by them on behalf of the 6[th] respondent. Therefore, the very purchase and appropriation of the property by the Government is illegal. In any case, now that the liability has been wiped off in its entirety, I see no reason to permit the Government to retain the property of the petitioner. Therefore, I direct that 14.3 Ares of property comprised in R.S.No.169/8 of Odanavattom Village in Kottarakkara Taluk shall be returned to the petitioner on the production of a copy of this judgment. Once the property is returned, it will be open to the petitioner to get it mutated and pay tax on that basis. Writ Petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE** ln