V.V. Padmanabhan and others v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WP(C).No. 14183 of 2011(W) ----------------------------------- PETITIONERS: ---------------------- 1. V.V.PADMANABHAN, S/O.VELAYUDHAN, VANAMPARAMBIL HOUSE, PERINJANAM, KODUNGALLUR, THRISSUR DISTRICT. 2. MANI @ KAMALADEVI, W/O.SIVADASAN, PANIKKASSERY, OORAKAM VILLAGE, THRISSUR DISTRICT. 3. SMT.V.S.SOBHANA, W/O.JAGADEESAN, PANANGATTU HOUSE, PUTHANCHIRA, MUKUNDAPURAM, THRISSUR DISTRICT. 4. SMT.RAJI JYOTHISHKUMAR, W/O.JYOTHISHKUMAR, CHITTANIPARA HOUSE, KODALLUR, PATTAMBI, PALAKKAD DISTRICT. 5. SMT.RUGMINI RAJ, - W/O.RAJAN, CHITTANIPARA HOUSE, KODALUR, PATTAMBI, PALAKKAD DISTRICT. 6. DHAKSHAYANI, W/O.LATE ANDIKUTTY, THANDASSERY, VALAPPAD, CHAVAKKAD, THRISSUR DISTRICT. 7. RAJAN, S/O.CHATHU, VALIYAPARAMBIL HOUSE, PERITHANAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENTS: ------------------------ 1. STATE OF KERALA REP. BY SECRETARY, TAXES (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. -2- ## W.P.(C)14183/2011 2. THE EXCISE COMMISSIONER, - COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695001. 3. THE DEPUTY COMMISSIONER OF EXCISE, - THRISSUR- 680001. 4. THE CIRCLE INSPECTOR OF EXCISE, - KODUNGALLUR, THRISSUR DISTRICT- 680002. 5. V.S.JYOTHISH KUMAR, AGED 52 YEARS, - S/O.SUBRAMANIAN, VANPARAMBIL HOUSE, PERINJANAM VILLAGE, KODUNGALLUR, THRISSUR DISTRICT-680002. GOVERNMENT PLEADER FOR R1 TO R4 Sri.A.J..Varghese THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- W.P.(C)14183/2011 W.P.(C).14183/2011 ## APPENDIX ## PETITIONERS' EXHIBITS: - Ext.P1 - Photocopy of the order, G.O.(MS)No.108/08/TD dt.26.5.2008 issued by the Govt.of Kerala. - Ext.P2 - Photocopy of the order, G.O(MS)No.266/2010/TD dt.12.11.2010 issued the Govt.of Kerala. - Ext.P3 - Photocopy of the application dt. 28.3.2011 submitted before the 3[rd] respondent. - Ext.P4 - Photocopy of the judgment dt.4.4.2011 in W.P.(C)10083/2011 passed by this Hon'ble Court. - Ext.P5 - Photocopy of the letter dt. 19.4.2011 sent to the 3[rd] respondent. - Ext.P6 - Photocopy of the order No.R6-2645/94 dt.28.4.2011 passed by the 3[rd] respondent. - Ext.P7 - Photocopy of the letter dt. 04.52011 sent to the 3[rd] respondent with copy to the 2[nd] respondent. - Ext.P8 - Photocopy of the letter dt.18.6.2010 issued by the State Information Officer, Excise Division Office, Thrissur. /true copy/ rka P.S. to Judge. ## **C.T.RAVIKUMAR, J.** -------------------------------------------- ## **W.P.C. No. 14183 of 2011-W** -------------------------------------------- **Dated this the 16[th] day of June, 2011.** ## **J U D G M E N T** This is the second round of litigation for the petitioners on the same subject matter. Earlier, the petitioners had filed W.P.(C) 10083/2011 seeking extension of the benefit of the Amnesty Scheme. After considering the rival contentions, the said writ petition was disposed of as per Ext.P4 judgment. As per Ext.P4, taking note of the submission made by the learned Government Pleader that Ext.P3 application referred as Ext.P3 therein, for availing the Amnesty Scheme was received by the 3rd respondent within the stipulated time this Court directed the 3rd respondent to consider the same and quantify the amount payable under the Amnesty Scheme to enable the petitioners to effect payment in terms of the Scheme. The Amnesty Scheme in Ext.P1 was extended from time to time and lastly it was extended upto 31.3.2011 by Ext.P2. In terms of the Scheme the amount due has to be paid in four monthly 2 W.P.(C)14183/2011-W instalments in the manner stipulated thereunder. In fact, the 3rd respondent was directed to consider Ext.P3 application in terms of Exts.P1 and P2 and to intimate the decision to the petitioners as per Ext.P4 judgment. However, the same was rejected as per Ext.P6 dated 28.4.2011. A perusal of Ext.P6 would reveal that two reasons have been assigned for rejecting the request of the petitioners in the application referred to as Ext.P3 in W.P.(C) 10083/2011. Firstly it is stated that one Sri.Jyothish Kumar, the 5th respondent herein who is one among the defaulters filed O.P.No.15591/1999 challenging the revenue recovery proceedings initiated under S.65 of the Act and it is still pending. Secondly, it is stated that as part of the recovery proceedings defaulter's land had already been taken as bought-inland by the Government. The application was found devoid of merits for considering under the Amnesty Scheme and accordingly, it was rejected. It is feeling aggrieved by Ext.P6 order, this writ petition has been filed. 2. A statement has been filed by the 4[th] respondent and virtually the reasons assigned in Ext.P6 for rejecting the claim of the petitioners have been reiterated thereunder. Admittedly, Ext.P3 3 W.P.(C)14183/2011-W application [Ext.P3 in W.P.(C). 10083/2011] was received by the third respondent within the stipulated time. The relevant clause in Ext.P1 which reads thus : - “For the arrears of the assessment years , between 1991-92 and 1995-96, if 100% of the principal is remitted, all interest and penalty shall be waived”. In that context it is relevant to refer to paragraph 6 of the statement filed by the 4th respondent and it reads thus: - “As per Order No.R6-2645/1994 dated 22.11.2000 - sanction was accorded to remit Rs.77,55,607/- being the 100% of the principal amount due from the above defaulters”. 3. With respect to the question what exactly is the principal amount payable there cannot be any dispute in view of the above extracted categoric statement. It is Rs.77,55,607/-. Thus going by Clause 2 in Ext.P1, if Ext.P3 application was allowed the petitioners were to pay only the said amount of Rs.77,55,607/under the Amnesty Scheme. The question now to be decided is whether the action on the part of the respondents in rejecting the 4 W.P.(C)14183/2011-W application of the petitioners for extending benefit of the Amnesty Scheme as per Ext.P6 is legally sustainable. Though the pendency of W.P.(C) No.15591/1999 filed by the 5th respondent challenging the revenue recovery proceedings has been assigned as a reason in Ext.P6, in the statement the 4th respondent has not endeavoured to j ustify or to support the said reason. I am at a loss to understand as to how the pendency of W.P.(C) 15591/1999 can be assigned as holding that their application lacks merits for considering under the Amnesty Scheme. In this context, it is also to be noted that in ground F of this writ petition it is specifically stated that W.P.(C) No.15591/1999 filed by the 5th respondent, Sri.Jyothish Kumar is only against the proceedings under S.65 of the Revenue Recovery Act against his arrest. For all these reasons I am of the considered view that the pendency of W.P.(C) No. 15591/99 cannot be a reason for rejecting Ext.P3 application. It appears that the 4th respondent also entertains the said view lest contentions would have been raised to support the said reasoning. The other reason assigned for rejecting the claim of the petitioners is that the defaulter's land has been taken as bought-in-land by the 5 W.P.(C)14183/2011-W Government. The learned senior counsel appearing for the petitioners submitted that petitioners would not claim for reconveyance of the defaulter's land taken as bought-in-land. In that context, it is also relevant to note that in the light of a Division Bench decision in **State of Kerala** v. **George Jacob** reported in 2010(3) KLT 483 even if such a claim for reconveyance of the bought-in-land is pressed into service it is only to be repelled. In the said circumstances, the said reason also would fade to insignificance. As per Ext.P4 this Court directed the 3rd respondent to consider Ext.P3 application and to quantify the amount payable under the Amnesty Scheme and Ext.P6 was passed in purported compliance with the directions in Ext.P4 judgment. The statement would reveal that the petitioners 3 and 4 as also the 5th respondent are among the defaulters. When the defaulters themselves came forward to effect the payment of the principal amount there was no reason to hold their application unmerited for consideration under the Amnesty Scheme. In view of the above findings, Ext.P6 cannot be sustained and accordingly it is set aside. Once the reason for rejection of Ext.P3 application by the petitioners as per Ext.P6 is 6 W.P.(C)14183/2011-W found unsustainable, the only point to be considered is what exactly the amount payable under the Amnesty Scheme. As already noticed, admittedly, the amount payable by the petitioners in terms of clause (2) in Ext.P1 can only be Rs.77,55,607/- as it is the principal amount even according to the respondents. It is so specifically stated in paragraph 6 of the statement filed by the 4th respondent itself. In the said circumstances, I do not think it necessary to remit the matter for a fresh consideration. Accordingly, this writ petition is allowed. It is declared that the petitioners are entitled to avail Amnesty Scheme. In terms of Ext.P1 25% of t he amount so intimated shall be remitted within 15 days of receipt of the intimation and the balance amount in equal monthly instalments starting from the subsequent month. Therefore, in terms of this judgment the petitioner shall remit 25% of the principal amount viz., Rs.77,55,607/- within 15 days from the date of receipt of a copy of this judgment and the balance amount in equal monthly instalments on 29.7.2011, 29.8.2011 and 29.9.2011 respectively. In view of this judgment the respondents shall not pursue the revenue recovery proceedings initiated against the 7 W.P.(C)14183/2011-W petitioners till the last date of payment viz., 29.9.2011. In fact, the necessity to pursue with such proceedings thereafter would arise only if the petitioners commit default in effecting the payment in terms of this judgment. It is made clear that in case the petitioners commit any default in payment of the instalments the reduction granted is liable to be revoked in terms of Ext.P1. **Sd/C.T.RAVIKUMAR, JUDGE** rka