Thankamma and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** ## **SA.NO. 786 OF 2000** **[AGAINST THE JUDGMENT AND DECREE DATED 22.5.2000 IN A.S. NO. 14/1993 OF THE II ADDITIONAL DISTRICT COURT, THRISSUR]** **[AGAINST THE JUDGMENT AND DECREE DATED 30.10.1992 IN O.S. NO. 2709 OF 1985 OF THE MUNSIFF COURT, THRISSUR.]** ## **APPELLANTS/ADDL. APPELLANTS/LEGAL HEIRS OF DECEASED PLAINTIFF:** **1. THANKAMMA, W/O. LATE C.K. KUTTAN, CHITTIKAPPIL HOUSE, CHERPU VILLAGE AND DESOM, THRISSUR TALUK.** **2. USHA, D/O. LATE C.K. KUTTAN, CHITTIKAPPIL HOUSE, CHERPU VILLAGE AND DESOM, THRISSUR TALUK.** **3. RAJAN, S/O. C.K. KUTTAN, CHITTIKAPPIL HOUSE, CHERPU VILLAGE AND DESOM, THRISSUR TALUK.** **4. BABY, S/O. LATE C.K. KUTTAN, CHITTIKAPPIL HOUSE, CHERPU VILLAGE, THRISSUR TALUK.** **5. BABU, S/O. LATE C.K. KUTTAN, CHITTIKAPPIL HOUSE, CHERPU VILLAGE, THRISSUR TALUK.** **BY ADV.** **SHRI. N.P. SAMUEL** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, THRISSUR.** **2. THE SUPERINTENDENT OF POLICE, THRISSUR.** **3. THE SUB INSPECTOR OF POLICE, CHERPU, THRISSUR DISTRICT** **4. THE DEPUTY TAHSILDAR (RR), THRISSUR.** **BY GOVT. PLEADER SHRI. P.M. SATHEESH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGMENT** The legal representatives of the plaintiff in the suit are the appellants in the second appeal. S.A. No. 786 of 2000 2 2. The plaintiff was running an industrial unit. During 1979, he approached this Court and obtained an order for police protection from a group of his workmen, who were on strike then, alleging that they are causing obstruction to the activities in the industrial unit. The case set out by the plaintiff in the plaint was that though this Court directed the State to provide police protection to the plaintiff for running the industrial unit, he was not extended police protection. It is stated by the plaintiff in the plaint that nevertheless, after some time, he was called upon to pay the cost of police protection allegedly rendered to him by the State. According to the plaintiff, though he disputed the liability to pay the cost of police protection on the ground that he was not extended police protection, proceedings have been initiated for realisation of the same from him under the Kerala Revenue Recovery Act, 1968 ('the Act', for short). The suit was filed by the plaintiff, in the circumstances, seeking a decree of permanent prohibitory injunction restraining the State and its officers, who are the defendants in the suit, from realising the cost of police protection from him. The defendants contested the suit by delivering a written statement. The main contention of the defendants in the written statement was that the suit is not maintainable in the light of Section 72 of the Act. As regards the merits of the matter, the stand taken by the defendants in the written statement was that police protection was S.A. No. 786 of 2000 3 extended to the industrial unit of the petitioner as directed by this Court and what is demanded from him is only the cost of police protection extended to him. The trial court found that the suit was not maintainable. It also found that the plaintiff is liable to pay the amounts demanded from him. Consequently, the suit was dismissed. Though the plaintiff challenged the decision of the trial court in appeal, the appellate court confirmed the decision of the trial court and dismissed the appeal. As noted, the legal representatives of the plaintiff who are aggrieved by the decision of the courts below, have thus come up in the second appeal. 3. Heard the learned counsel for the appellants as also the learned Government Pleader. 4. The learned counsel for the appellants vehemently contended that the State cannot realise the cost of police protection extended to citizens from them as it is an obligation of the State to protect the life and property of citizens. The learned counsel for the appellants also contended that the concurrent findings rendered by the courts below as regards maintainability of the suit are unsustainable. According to the learned counsel, the instant case is one where there is a dispute as to the liability of the plaintiff to pay the amount attempted to be realised under the Act. In a case of this nature, it was pointed out that a suit can certainly be instituted for resolving the dispute relating to the liability. The learned counsel S.A. No. 786 of 2000 4 placed reliance on the decision of this Court in _**Chinnaswamy v. State of Kerala** [2009 (2) KLT 525]_ in support of the said contention. 5. I shall first consider the question relating to the maintainability of the suit. Section 72 of the Act had undergone an amendment in terms of Act 31 of 2007. The instant suit being one instituted prior to the said amendment, Section 72 of the Act, as it stood prior to Act 31 of 2007, is relevant in the context and the said provision reads thus: _“_ _**General bar to jurisdiction of civil courts save where fraud alleged:-** 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 Board of revenue, where the Collector is a party to the question;_ _(ii) the Collector, in other cases.”_ provided suit may be brought in a civil court in respect of any such question on the ground of fraud. “ 6. It is explicit from the aforesaid provision that a suit S.A. No. 786 of 2000 5 involving a question arising between the authorities under the Act and the defaulter relating to the execution of a demand issued under the Act is maintainable only on the ground of fraud. 'Execution' means _“carrying out some act or course of conduct to its completion” (Black's Law Dictionary)._ If one understand the word 'execution' in the aforesaid sense, the question raised in the instant case as regards the liability of the plaintiff to pay the amount demanded under the Act is a question relating to the execution of the demand. The plaintiff is not challenging in the suit the demand on the ground of fraud. The said question in the light of the provision aforesaid is one required to be decided as provided for therein and not in a suit. It is, therefore, clear that the suit is one barred under Section 72 of the Act. In an identical case where an injunction was sought against revenue recovery proceedings on the ground that the liability is disputed, a Division Bench of this Court in _**Spl. Tahsildar v. Vasu** [2006 (4) KLT 557]_ , held that the said dispute, in the absence of any allegation of fraud, is a dispute to be resolved by the authorities under the Act in terms of Section 72 of the Act and, therefore, the suit is barred. 7. In _**Chinnaswamy**_ ( _Supra_ ), a learned Single Judge of this Court held that in a case where a suit is instituted for declaration as regards the liability of the plaintiff to pay the amounts demanded under the Act, the suit is not barred under S.A. No. 786 of 2000 6 Section 72 of the Act. Later, the very same learned Judge in _**Sidco v. GAB industries** [2010 (1) KLT SN 57]_ distinguished the decision in _**Chinnaswamy**_ ( _Supra_ ). _**Sidco**_ ( _Supra_ ) was a case where a decree of injunction was sought as in the instant case disputing the liability under the demand on the ground that the demand is barred by limitation. The view taken by the learned Judge in the said case was that the decision in _**Chinnaswamy**_ ( _Supra_ ) is a case where a declaration is sought which could be granted only by a competent civil court and, therefore, the said decision does not apply to the facts of the case in _**Sidco**_ ( _Supra_ ). Paragraph 8 of the decision of this Court in _**Sidco**_ ( _Supra_ ) reads thus: _" I shall refer to the decision in Chinnaswamy v. State of Kerala (supra) relied on by the learned counsel for respondent Nos. 1 and 2. In that case I had the occasion to consider the scope and application of S. 72 of the Act. It was held that when a declaration regarding non-liability to pay the amount (attempted to be recovered under the Act) which is not required to be determined by the Collector or other authority mentioned under S. 72 of the Act is sought for by the defaulter in a civil Court and in consequence to that declaration relief of injunction against recovery of the amount under the Act is also sought for, the suit cannot be said to be barred under S. 72 of the Act. That was a case where alleging that defaulter committed breach of contract he had with the Government and caused loss to the latter, proceeding was initiated against him under_ S.A. No. 786 of 2000 7 _the Act for realization of certain amount by way of damages. The defaulter filed suit for a declaration that he is not liable to pay damages to the Government as breach was not on his part. The question whether breach of contract was on the part of defaulter was not a matter which the Government, being one of the parties to the contract could not decide on its own. Adjudication by a court or other forum as is permissible was required whether breach was on the part of defaulter and he was liable to pay damages to the Government and if so, what is the quantum. That was not a matter required to be determined by the Collector or other authority mentioned under S. 72 of the Act. Hence it was held that suit seeking declaration of nonliability and challenging recovery proceedings was maintainable. What is held in Chinnaswamy v. State of Kerala is that if the suit concerned issues which are not required to be determined by the Collector or other authority mentioned in S. 72 of the Act and a consequential relief of injunction against recovery of the amount under the Act is prayed for, such suits are not barred under S. 72 of the Act. If the matter in issue is required to be determined by the Collector or other authority under S. 72 of the Act, then the mere fact that a declaration is also prayed for may not take the suit out of the bar under S. 72. The decision in Chinnaswamy v. State of Keala has to be understood on the facts involved in that case. That decision has no application to the facts of this case._ 8. The learned Government Pleader contended that the S.A. No. 786 of 2000 8 decision of this Court in _**Chinnaswamy**_ ( _Supra_ ) is not one correctly decided. It is seen that _**Chinnaswamy**_ ( _Supra_ ) is a case where amounts were attempted to be recovered from the plaintiff therein towards damages on the ground of breach of contract before adjudication of the issues relating to the breach and quantum of damages in independent proceedings. Be that as it may, in so far as the very same learned Judge who decided _**Chinnaswamy**_ ( _Supra_ ) clarified in a case identical to the case on hand that the decision in _**Chinnaswamy**_ ( _Supra_ ) does not apply to such cases, it is not necessary to examine the correctness of the decision in _**Chinnaswamy**_ ( _Supra_ ) in this case. In the light of the aforesaid discussion, I am of the considered view that the findings rendered by the courts below that the suit is barred by Section 72 of the Act are perfectly in order. In so far as it is found that the suit is barred by Section 72 of the Act, it is unnecessary to examine the question as to the correctness of the findings rendered by the courts below as to the liability of the plaintiff. In the result, the second appeal is without merit and the same is, accordingly, dismissed. **Sd/P.B. SURESH KUMAR, JUDGE** PKK