The KuriaKose Elias Trust for Communication and Development v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 9TH DAY OF AUGUST 2012/18TH SRAVANA 1934** **WP(C).No. 8873 of 2008 (F) --------------------------** ## **PETITIONER(S): -------------** **THE KURIAKOSE ELIAS TRUST FOR COMMUNICATION AND DEVELOPMENT, CHRIST HILL, KAWDIAR THIRUVANANTHAPURAM,REPRESENTED BY ITS PRESIDENT FR.A. SEBASTIAN.** **BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S.** **RESPONDENT(S):** **--------------** **1. THE STATE OF KERALA - REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM** **2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY) THIRUVANANTHAPURAM.** **3. THE COMMISSIONER OF POLICE THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SMT.LISHA.M.G.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 8873 of 2008 (F)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :-** |**EXT.P1**|**:**|**TRUE COPY OF THE DEMAND NOTICE DATED 10-7-2006 ISSUED**| |---|---|---| |||**BY THE DEPUTY TAHSILDAR (REVENUE RECOVERY) UNDER**| |||**SECTION 7 OF THE REVENUE RECOVERY ACT.**| |**EXT.P2**|**:**|**TRUE COPY OF THE ORDER NO.LR(B)4-4-1279/06 DATED**| |||**20-8-2007 OF THE COMMISSIONER OF LAND REVENUE.**| |**EXT.P3**|**:**|**TRUE COPY OF the ORDER NO.B4/60329/98/TC DATED**| |||**14-01-2008 OF THE COMMISSIONER OF POLICE,**| |||**THIRUVANANTHAPURAM.**| |**EXT.P4**|**:**|**TRUE COPY OF THE I.A.7340/94 FILED BY THE PETITIONER**| |||**IN O.S.NO.1117/1968 BEFORE THE 3RD ADDITIONAL MUNSIFF**| |||**COURT, THIRUVANANTHAPURAM DATED 8-9-1994.**| |**EXT.P5**|**:**|**TRUE COPY OF THE ABOVE ORDER DATED 7-10-1994 ISSUED BY**| |||**THE 3RD ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM**| |||**IN I.A.NO.7340/1994 IN O.S.NO.1117/1968.**| |**EXT.P6**|**:**|**TRUE COPY OF THE JUDGMENT DATED 4-4-1998 IN**| |||**O.S.NO.1117/1968.**| |**RESPONDENT'S **||**EXHIBITS**<br>**:**<br>**NIL.**| **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.8873 of 2008 ---------------------------------------- Dated this the 9[th] day of August 2012 ## **J U D G M E N T** The petitioner, a Charitable Trust, challenges Ext.P1 demand notice issued under Section 7 of the Kerala Revenue Recovery Act for an amount of Rs.38,61,407/- with collection charges and interest and Ext.P3 order of the Commissioner of Police, Thiruvananthapuram City. 2. The facts of the case discloses that the petitioner obtained an order dated 07/10/1994 from the Munsiff Court, Thiruvananthapuram in I.A.No.7340/1994 in O.S.No.1117/1968 for Guard Duty in the plaint schedule property. Ext.P4 is the said application and Ext.P5 is the order passed in the said application. 3. The suit was disposed of as per judgment dated 04/04/1998 as evident from Ext.P6. 4. Ext.P1 demand notice indicates that the same is with reference to Government dues. The petitioner came to know that the Government dues sought to be recovered was in regard W.P.C.No.8873/2008 2 to a demand made by the police department for providing guard duty on the basis of the order passed by the Munsiff Court in terms of Ext.P5. Petitioner preferred a revision before the Commissioner of Land Revenue. By Ext.P2 order, the Commissioner directed the petitioner to approach the Commissioner of Police and seek appropriate remedy. Ext.P3 is the order passed by the Commissioner stating that the amount demanded was the cost incurred by the police department for providing guard duty for the petitioner for a period from 15/10/1994 to 04/08/2004. 5. It is the contention of the petitioner that though police guard duty was ordered as per Ext.P5 after the judgment in the case on 04/04/1998, there cannot be any claim and in fact, no police protection was provided after the judgment of the case. It is also contended that there was no order for continuing the police protection after the judgment. It is also their case that the amount demanded is not legally recoverable as it is barred by limitation. It is further contended that it is the obligation of the State Government to provide protection to the person and property of a citizen for which charges cannot be claimed. The W.P.C.No.8873/2008 3 calculation of the amount is also under challenge. 6. Third respondent has filed a counter affidavit supporting the demand. It is their case that though the suit was decreed on 04/04/1998, there was no demand to withdraw the police guard and such guard duty was provided till 04/08/2004 and therefore, a demand was made for the cost incurred by the police department from 15/10/1994 to 04/08/2004. When a demand was made to the petitioner, they did not pay the amount and as such revenue recovery proceedings were initiated in terms with Ext.P1. It is their case that there is a specific instruction in the court order that the amount incurred for the guard duty is to be paid by the petitioner and the bill of cost was sent to the petitioner every year from 15/10/1994 to 04/08/2004. They also reiterated that full time guard duty was provided to the Nemom plaint schedule property in order to guard the various items in the plaint schedule property. 7. During the pendency of the above writ petition, there was a direction by this Court to pay an amount of Rs.6,00,000/towards Ext.P1 demand as a condition for staying further proceedings and it is submitted that the said amount had already W.P.C.No.8873/2008 4 ## been remitted. 8. The short question that arises for consideration in the above writ petition is whether the police department is entitled to claim the amount demanded for providing police guard to the property of the petitioner in terms of the order passed by the Munsiff Court. Ext.P4 is the application filed by the petitioner before the Munsiff Court which reads as under: “For the reasons stated in the accompanying affidavit, it is humbly prayed that this Hon'ble Court may be pleased to pass orders directing the Inspector of Nemom Police Station to post Constables to guard the plaint schedule property and to see that no item including vehicles, its dismantled portions wood etc. is removed by anybody from the property until further orders, at the expenses of the petitioner as prescribed by the Department.” The court passed the following order on 07/10/1994. “ **7.10.1994.** Heard. The Counsel appearing for the official receiver has no objection in allowing this petition. Hence this petition is allowed and issued direction.” 9. Apparently, when the petition is allowed, the W.P.C.No.8873/2008 5 petitioner is under obligation to pay the expenses for such guard duty as prescribed by the department. The suit was decreed on 04/04/1998. Ext.P6 is the judgment. Decretal portion reads as under: “In the result, suit is decreed. The defendants are permanently restrained from constructing any additional building in the plaint schedule property and also restrained from making any act which is detrimental to the interest of the plaintiff. The defendant No.7 and additional defendants 25 to 29 are directed to demolish the unauthorised structures constructed by them in violation of the injunction order. If the defendants are not obeying the order the plaintiff can execute the decree through court and realise the cost for removal of the unauthorised construction. The plaintiff is also entitled to recover the cost. No decree is passed against the other defendants because they filed agreement before the court stating that they settle the matter out of the court.” 10. It is needless to state that once the suit is decreed, unless otherwise directed, the interlocutory order passed in the suit will not survive. Therefore, by any stretch of imagination, W.P.C.No.8873/2008 6 the police guard duty could have been availed by the petitioner only till 04/04/1998. But, it is the case of the respondents that they were not aware of the judgment in the case and they continued to provide guard duty which is a fact denied by the petitioner. By Ext.P3 order, the Commissioner of Police had stated that the bill of cost amounting to Rs.31,65,087/- for the period from 15/10/1994 to 04/08/2004 was forwarded to the petitioner through the Director General of Police, Thiruvananthapuram and it is further stated that the bill of cost was prepared and forwarded to the petitioner, but no payments were made. But, it is relevant to note that no documents are produced by the respondents to indicate that guard duty had been actually provided after the date of the judgment and that the bills were being forwarded from time to time. Still further, it could be seen that a demand had been made only by way of Ext.P1 revenue recovery notice dated 10/07/2006. If the bills sent by the police department remained unpaid, necessarily some steps ought to have been taken by the department either to inform the court that the payment was not made or to stop providing the guard duty. W.P.C.No.8873/2008 7 11. When a court has given direction to provide police protection, it was open for the police department to approach the same court for appropriate orders in order to obtain the charges which they claimed. Apparently, this is a disputed liability. Though the petitioner admits that they have obtained an order for police protection, they dispute the liability to pay any such charges at least after 04/04/1998. When the liability is disputed, it was not open for the police department to assess the charges by themselves and seek revenue recovery proceedings. The court which passed the order is not informed about any such charges and no proceedings are taken to obtain an order from the court. In that view of the matter, Ext.P1 and P3 is bad in law. 12. The petitioners also have a case that the claim is barred by limitation especially in view of the judgment of the Supreme Court in **State of Kerala v. V.R.Kalliyanikutti** [(1999) 3 SCC 657]. These are all matters which are required to be considered when there is an assessment of a disputed liability. In so far as the 3[rd] respondent had not approached any court of law for adjudicating the said liability, it is not open for them to make a unilateral demand and then seek to recover the W.P.C.No.8873/2008 8 ## amount by way of revenue recovery proceedings. 13. Therefore, taking into consideration the fact that there is no assessment of the charges to be levied as against the petitioner, the demands made by way of Exts.P1 and P3 are liable to be quashed. 14. During the pendency of the writ petition, the petitioner had already paid an amount of Rs.6,00,000/-. Though the petitioner had disputed the liability to pay, the learned senior counsel Sri.M.K.Damodaran on instructions submits that the said amount can be treated as an appropriate charges for the guard duty performed by the department and the petitioner does not seek refund of the said amount. In that view of the matter, I am of the view that the said amount can be treated as the payment for the guard duty provided by the police department. In the result the Writ petition is allowed and Ext.P1 and P3 are quashed. The respondents are not bound to refund the amount paid as per the interim order. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.8873/2008 9 W.P.C.No.8873/2008 10 W.P.C.No.8873/2008 11