WA.1128 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
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PRESENT
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THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
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## **`THE HONOURABLE MR. JUSTICE S.MANU`**
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WEDNESDAY, THE 2[ND] DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
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## **`WA NO. 1128 OF 2023`**
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[AGAINST THE JUDGMENT DATED 20.03.2023 IN WP(C)
NO.15568/2013]
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## **`APPELLANTS/RESPONDENTS IN THE WP(C):`**
- **`1 TAHASILDAR (REVENUE RECOVERY), VATAKARA, PIN – 673010.`**
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2THE DISTRICT COLLECTOR, KOZHIKODE, PIN – 673001.
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BY GOVERNMENT PLEADER SMT. RESMITHA R. CHANDRAN
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## **`RESPONDENT/PETITIONER IN WP(C):`**
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KIRAN GUPTA, PROPRIETRIX,
M/S. REVION ENTERPRISES: (NOW DEFUNCT)
4/147, AKASH DEEP, JAWAHAR NAGAR COLONY,
CALICUT., PIN – 673006.
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BY ADVS. SRI. K.I.MAYANKUTTY MATHER (SENIOR)
SMT. PARVATHY
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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
02.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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## JUDGMENT
Dated this the 2[nd ] day of April, 2025.
## Nitin Jamdar, C. J.
By this Appeal filed under Section 5 of the Kerala High Court Act, 1958, the Appellants – State authorities seek to challenge the judgment of the learned Single Judge directing the Appellants not to treat the property of the Respondent – Original Petitioner as “bought-in-land” and to drop all further proceedings in that regard.
2. The Appellants are the Tahasildar (Revenue Recovery), Vatakara, and the District Collector, Kozhikode. The Respondent – Original Petitioner, has been doing business in sandalwood oil.
3. The Petitioner was in arrears of a substantial amount of sales tax to the tune of 35,96,755/-. for the assessment years 1992-93 and 1993-₹ 94. A demand for tax and penalty was raised. Two properties of the Petitioner were attached by Appellant No.1 and the Tahsildar, Kozhikode; one of them was 7.88 ½ acres of agricultural land. The Petitioner received a notice stating that the properties would be sold in an auction. Subsequently, a further notice was issued by the Sales Tax authorities. The Petitioner then sought relief under the amnesty scheme. The Petitioner was informed that the properties were already taken over by the Appellants. The Petitioner has also filed W.P.(C) No.15 of 2011
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in which this Court on 20 January 2011 directed the Assistant Commissioner, Special Circle-1, Kozhikode, to reconsider the matter and pass appropriate orders on the application seeking benefits under the amnesty scheme. The Petitioner, based on the contention that she was permitted to settle the tax arrears and that the amount demanded has been fully paid, filed W.P.(C) No.15568 of 2013 seeking issuance of a writ of mandamus directing the Respondents/Appellants not to treat her properties as “bought-in land” and to drop all or any proceedings initiated to treat her property as “bought-in land”. A counter affidavit dated 27 September 2013 was filed by Appellant No.1 in the writ petition, and further affidavits were filed by the Petitioner.
4. The learned Single Judge by judgment dated 20 March 2023 recorded that the Petitioner has not cleared the dues and she has not been able to produce the proof of the payment of 1993-94 as per the original demand along with the penalty amount. However, the learned Single Judge held that in order to strike equity, the Petitioner be permitted to pay the same with interest within a period of one month, and the Appellants were directed to release the property in favour of the Petitioner. Challenging this judgment dated 20 March 2023, the present Appeal was filed and by order dated 15 November 2023, the operation and implementation of the judgment dated 20 March 2023 has been stayed by this Court.
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5. We have heard Ms. Resmitha R. Chandran, the learned Government Pleader for the Appellants, and Ms. Parvathy, the learned counsel for the Respondent.
6. The Appellants, in the counter affidavit dated 27 September 2013, have placed on record that the revenue recovery actions were already completed and that the landed property was now under the custody of the Tahsildar, Koyilandy, and included in the scheme for distributing it to the landless people. The Petitioner has not denied this assertion made in the counter affidavit. Thus, the prayer in the writ petition for a writ of mandamus is to direct the State to hand over possession of the property. The property is now in the possession of the State Government and forms part of the pool for allotment to the landless.
7. The learned Government Pleader submitted that the case of the Petitioner is based on falsehood and that the petition suffers from suppression of material facts. The learned Government Pleader submitted that in the petition, the Petitioner asserted that she had paid the entire arrears under the amnesty scheme. However, the Appellants, in the counter affidavit, have pointed out that though permission was granted to the Petitioner to settle the arrears under the amnesty scheme, the Petitioner did not settle the arrears for the assessment year 1993-94. Consequently, the permission granted to settle the arrears for the year 1993-94 under the amnesty scheme was cancelled by order dated 29
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October 2011. The learned Government Pleader submitted that, thereupon in an additional affidavit filed by the Petitioner, reference was made only to the settlement of arrears for the year 1992-93. The learned Government Pleader, relying on this position, submitted that the Petitioner is not entitled to any relief. We find merits in the contention. The Petitioner had specifically stated on oath in the petition that she had cleared all the arrears under the amnesty scheme. However, when faced with the counter affidavit filed by the Appellant – State, the Petitioner changed her version that only a part of the amount had been paid. This was a clear misstatement on the part of the Petitioner, which dis-entitles her from seeking relief under the equity jurisdiction.
8. On merits, the learned Government Pleader submitted that having not cleared the dues, merely on equity, a writ of mandamus cannot be issued. The learned Government Pleader relied upon the decisions of the Supreme Court in the cases of Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and Others[1] and Oriental Bank of . Commerce v. Sunder Lal Jain and Another[2]
9. The learned counsel for the Respondent submitted that the learned Single Judge has passed the impugned order in equity, permitting the arrears to be paid with interest. It was further contended that no prejudice would be caused to the Appellants, and therefore, the order 1 (1977) 4 SCC 145 2 (2008) 2 SCC 280
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passed by the learned Single Judge should be sustained.
10. The Petitioner had sought for a writ of mandamus. The basic prerequisite for issuing a writ of mandamus is the existence of a legal right and performance of statutory duty by the Authority against whom mandamus is sought. In the case at hand, admittedly, the Petitioner was in arrears of a substantial amount of demand towards sales tax. The Petitioner had received a notice on 26 February 2003 intimating that the property would be sold in an auction on 29 March 2003. The Petitioner took no steps in that regard. The requisition for the realization of sales tax arrears for the years 1992-93 and 1993-94 was to the tune of ₹35,96,755/-. Since the Petitioner did not make the payment even after receipt of the statutory notice, properties, including the landed property to the extent of 7.88 ½ acres, were attached. Despite being permitted to settle the dues under the amnesty scheme, the Petitioner did not do so for the year 1993-94, and the permission was subsequently revoked. Even as per the amended Section 50A of the Kerala Revenue Recovery Act, 1968, the period of limitation for reconveyance of “bought-in-land” is five years from the date of confirmation of sale. The Petitioner took no steps to settle the arrears for these years, and ultimately, after ten years, the property was put on sale, and the sale was confirmed on 26 July 2003. Ten years thereafter, the writ petition was filed.
11. No legal right of the Petitioner has been demonstrated; neither is it
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referred to in the impugned order. Merely out of sympathy, a writ of mandamus cannot be issued to return the property after the State has lawfully taken over the property of a tax defaulter through a completed action. Even for the exercise of equity jurisdiction, no special circumstances were placed on record by the Petitioner to make out a case in that regard. Therefore, the Petitioner who neither cleared the arrears, nor filed any statutory appeal, approached this Court after a decade with gross laches, was not entitled to the issuance of a writ of mandamus directing the State to hand over possession of the property vested in it.
12. Accordingly, the Appeal is allowed. The judgment dated 20 March 2023 in W.P.(C) No.15568 of 2013 is quashed and set aside and the writ petition is dismissed.
Sd/NITIN JAMDAR, CHIEF JUSTICE
Sd/S. MANU, JUDGE
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## **`APPENDIX OF WA 1128/2023`**
## **`’ - APPELLANTS ANNEXURES:`**
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ANNEX.-1TRUE COPY OF THE NOTICE DATED 25/04/2003
INTIMATING THE DATE OF AUCTION AS 09/05/2003.
ANNEX.-2TRUE COPY OF THE NOTICE DATED 09/05/2003
INTIMATING THE DATE OF AUCTION AS 23/05/2003.
ANNEX.-3A TRUE COPY OF THE LETTER NO. REF. D. 5088/03
(1) DATED 26/07/2003.
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## **`RESPONDENT’S ANNEXURES:- NIL`**
//TRUE COPY//
P.A. TO C.J.
