IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 WP(C).No. 1279 of 2011(H) ------------------------- PETITIONER: --------------- N.SEKHARAN NAIR, AGED 71 YEARS, S/O.NARAYANA PILLAI, AMBIKA NIVAS, 3/973, THRUTHEPARAMBU ROAD, VAZHAKALA, THRIKKAKARA P.O., ERNAKULAM. BY ADV. MR.SAJEEV KUMAR K.GOPAL MS.AMBIKA RADHAKRISHNAN RESPONDENTS: --------------- 1. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM-33. 2. THE TAHSILDAR, (REVENUE RECOVERY), CHERTHALA, PIN-688 524. 3. THE DEPUTY COMMISSIONER (EXCISE), OFFICE OF THE DEPUTY EXCISE COMMISSIONER, ERNAKULAM, PIN-682018. 4. PADMINI AMMA, KATTIKKAD VEEDU, KADAKKARAPPALLY, CHERTHALA, PIN-688 529. 5. K.N.GIREESH, KAMALADALAM, KADAKKARAPPALLY, CHERTHALA, PIN-688529. 6. JAYALAKSHMI, W/O.SATHEESH, THOTTEZHATH VEEDU, THURAVUR, CHERTHALA, ALAPPUZHA DISTRICT, PIN-688 532. ADV. SRI.SIVAN MADATHIL FOR R5 GOVERNMENT PLEADER MR.K.RAMESH FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON 06/09/2011 DELIVERED THE FOLLOWING: WP(C).No. 1279 of 2011(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: IMPLEADING PETITION FILED BY THE PETITIONER IN C.M.P.NO.4020/2003 IN O.P.NO.2180/1995. EXT.P2: ORDER IN O.P.NO.2180/1995 PASSED BY THE DIVISION BENCH OF THIS COURT DTD. 22.1.2004. EXT.P3: REPORT SUBMITTED BY THE DEPUTY SUPERINTENDENT OF POLICE DTD. 30.7.2004. EXT.P4: JUDGMENT IN O.P.NO.2180/1995 OF THIS COURT DTD. 17.5.2005. EXT.P5: NOTICE NO.B3-5/94/ABK ISUED UNDER SECTION 49(2) OF THE REVENUE RECOVERY ACT TO THE PETITIONER DTD. 6.7.2009. EXT.P6: NOTICE NO.B3-5/94/ABK ISSUED UNDER SECTION 49(2) OF THE REVENUE RECOVERY ACT TO THE PETITIONER DTD. 4.8.2009. EXT.P7: ORDER IN S.L.P.(C).NO.15208/2005 PASSED BY THE HON'BLE SUPREME COURT OF INDIA DTD. 24.8.2009. EXT.P8: ORDER NO.LR(B)4-40338/2009 ISSUED BY R1 DTD. 10.12.2010. EXT.P9: NOTICE FOR SALE ISSUED BY R2 FOR SALE OF THE IMMOVABLE PROPERTY OF THE PETITIONER DTD. 25.5.2011. RESPONDENTS' EXHIBITS: EXT.R5(a): NOTICE ISSUED BY THE DEPUTY TAHSILDAR (RR) CHERTHALA DTD. 30.12.1994. EXT.R5(b): INTERIM ORDER IN W.P.(C).NO.10221/2009-w DTD 24.7.2009 OF THIS COURT. EXT.R5(c): INTERIM ORDER IN W.P.(C).NO.10221/2007 DTD. 30.3.2009. ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.1279 Of 2011 ---------------------- Dated this the 6th day of September, 2011. J U D G M E N T
The writ petition is filed seeking the following reliefs:
i) To issue a writ of certiorari or other appropriate writ, direction or orders calling for the records leading to Exhibit P5, P6 and P8 and quash the same.
ii) To declare that the petitioner is not liable to pay any amount to the respondents 1 & 2 for which Revenue Recovery proceedings are initiated as per Exhibits P5 & P6.
iii) To issue a writ of mandamus or appropriate writ, direction or order directing the 1st respondent to reconsider revision petition filed by the petitioner under Section 83 of the Kerala Revenue Recovery Act after hearing the petitioner and by conducting a proper enquiry into the genuineness of the contentions raised by the petitioner by entrusting the investigation with appropriate agencies.
2. The petitioner owns and possesses 75 cents of land in Cherthala North Village. The petitioner challenges Ext.P8 proceedings dated 10.12.2010 of the Commissioner of Land Revenue.
W.P.(C).No.1279 Of 2011
3. The brief facts leading to the filing of the writ petition are as follows:
The Commissioner of Land Revenue after perusing the file passed the order stating that the revenue recovery action is based on genuine request raised from the Excise Department whose records show that the present petitioner is also a co- obligant and liable person. It was found that the recovery actions were initiated as per Rules and based on proper requisitions and that the revision petitioner cannot evade the responsibility in the matter and that he is jointly and severally liable to pay off the dues.
4. The petitioner and 4th respondent are the joint bidders of abkari shop Nos.48 to 59 Group V of Mattanchery Range of Ernakulam District for the year 1993-94. The joint bidders had auctioned the shops for an annual rental of Rs.47,07,007/-. The joint bidders are also liable for the excise duty on designated quantum of rectified spirit amount to Rs.13,83,253/- per annum. The joint bidders furnished 30% of the bid amount as solvency being the security for the purchase of the auctions. Subsequently, the licensees defaulted payment of KIST and ::3::
W.P.(C).No.1279 Of 2011 Excise Duty to Government. Licence was cancelled and revenue recovery proceedings were initiated against the bidders. The defaulters are liable to pay Rs.43,14,601/- as on 31.3.1994 with future interest @18% per annum with effect from 1.4.1994. The Excise officials issued demand notices to the petitioner and his co-bidder. Thereupon the petitioner and his co-bidder as petitioners filed O.P.No.2180/1995. In the said O.P, the 2nd petitioner, who is the petitioner herein, filed an affidavit stating that he is not a party in the O.P and his name has been used by someone without his knowledge and consent. The petitioner herein contended in the said O.P that he has not signed any paper before the Excise authority so as to obtain a licence for conducting abkari shop, that during that time he was not in Cherthala, that he was in Tamil Nadu, that he was unaware of the revenue recovery proceedings initiated against him, that he never had occasion to bid in auction the abkari shops and that his name was used as a co-obligant by practicing malpractice. On the basis of the affidavit, this Court directed the police to conduct an enquiry. The Deputy Superintendent of Police submitted the enquiry report. This Court disposed of the O.P. repelling the ::4::
W.P.(C).No.1279 Of 2011 contentions raised by the petitioner and rejected the report submitted by the police. This Court held that the contention of the petitioner that he has been made a party to the proceedings without his knowledge and consent was not accepted by this Court. In paragraph 20 of the judgment dated 17.5.1995, marked as Ext.P4, this Court, after considering the contentions of the petitioner and after referring to the report observed as follows:
"20. Taking notice of the allegation of forgery, earlier this Court has directed that the Deputy Inspector General of Police, Ernakulam Range is to look into the matter. A report had been filed by the said officer. However, we find that the report as above is not satisfactory, and the version of the first petitioner has not been appropriately ascertained. It will in any case be risky to rely on the report for any purpose. Consequently, any further action on the crime registered as 201/2004 in the Pattnakad Police Station is to be discontinued. The second petitioner has failed to explain the countless loose ends in his anxiety to wash off his hands. We notice that the second petitioner had been a beneficiary of the interim orders passed in the said original petition. It is too much to assume that the first petitioner had duped the Assistant Excise Commissioner, when the bid had taken place, when the agreement was ::5::
W.P.(C).No.1279 Of 2011 signed, and no particular reason is shown to explain the conduct of the first petitioner for remitting a sizable sum of Rs.123 Lakhs at the inception of the agreement, giving equal credit to the second petitioner. He had also not challenged the steps taken by the Excise Authorities implicating him in the proceedings for recovery, on allegation of fraud."
In paragraph 30 this Court held that "coercive proceedings initiated against the petitioners are not illegal, and powers vested alone had been enforced". What have been demanded from the petitioners are payments which are statutorily permissible and we hardly find any reason to interfere with such demands". The O.P filed by the petitioner and co-bidder, who are the licensees, was dismissed. The connected O.P.No.1369/1995 was also dismissed with directions. The petitioner challenged Ext.P4 judgment before the Apex Court as S.L.P(Civil).No.15208/2005. When the matter was taken up for consideration the petitioner did not opt to challenge Ext.P4 judgment on merit, instead, the learned senior counsel on behalf of the petitioner submitted that he intends to file a revision before the Board of Revenue and sought disposal of the S.L.P. The Apex Court by Ext.P7 judgment disposed the S.L.P permitting the petitioner to file a revision ::6::
W.P.(C).No.1279 Of 2011 petition within four weeks from the date of order and further ordered that in the aforesaid period, no proceedings for recovery by the Revenue be made. The Apex Court also observed that it will also be open to the parties to raise contentions open to them in revision. The contention of the petitioner that he was not a licensee under the Abkari Act liable to pay any amount, and therefore, revenue recovery proceedings are illegal, was repelled by this Court and the writ petition was dismissed. Instead of challenging the findings entered by this Court in Ext.P4 judgment, the petitioner submitted before the Apex Court that he intends to file a revision petition before the Board of Revenue challenging the revenue recovery proceedings. Thus the findings entered by this Court have become final. In the revision petition filed by the petitioner before the Land Revenue Commissioner, the Land Revenue Commissioner is not expected to go into the contentions raised by the petitioner and Ext.P4 has become final.
5. It is brought to the notice of this Court that the petitioner herein, as petitioner, had filed W.P.(C).No.9845/2005 challenging the revenue recovery proceedings contending that the respondents have no jurisdiction to take any action against ::7::
W.P.(C).No.1279 Of 2011 the petitioner for realization of Abkari dues as he was not an abkari contractor or licensee of any shop for the period in question. The prayer in the said writ petition is to quash Ext.P1 demand notice and Ext.P2 attachment notice and for a direction to restrain the respondents from initiating or continuing revenue recovery proceedings initiated pursuant to Exts.P1 & P2. The said writ petition was dismissed of by this Court by judgment dated 2.5.2008 following Ext.P4 judgment. Thus, the petitioner had unsuccessfully challenged the revenue recovery proceedings before this Court in O.P.No.2180/1995 and W.P.(C). No.9854/2005. Both writ petitions were dismissed.
6. Ext.P8 order was passed after considering the contentions of the petitioner. The learned counsel for the petitioner submits that Ext.P8 order was passed without hearing the petitioner. In Ext.P8, it is stated that at the time of hearing the revision, petitioner was not present and nobody represented him. In view of the submission made by the petitioner, I heard the contentions raised by the petitioner on merits. The contention that the first respondent has no jurisdiction to adjudicate or enquire in to the genuineness of the agreement ::8::
W.P.(C).No.1279 Of 2011 executed by the petitioner and Excise Department are devoid of any merit. 1st respondent is only expected to adjudicate the procedural irregularity, if any, in the revenue recovery proceedings. The contentions raised by the petitioner that he is not a licensee under the Abkari Act, that he is not liable to pay the amount towards abkari dues and that the proceedings initiated against him under the Revenue Recovery Act are illegal are questions agitated before this Court in Ext.P4 case and in W.P.(C).No.9854/2005. The contentions were considered by this Court and repelled the same. The same questions were re- agitated before this Court in this writ petition as well.
7. The 1st respondent examined the contentions raised by the petitioner and perused the file. He was convinced that Revenue Recovery action was based on genuine requisition made from the Excise Department. He was also convinced that the petitioner is a co-obligant and therefore he is jointly and severally liable to pay the abkari dues. The 1st respondent, therefore, found that the demand under Revenue Recovery Act is enforceable. Therefore, Ext.P8 order was passed finding that the petitioner cannot evade the responsibility in the matter and he is ::9::
W.P.(C).No.1279 Of 2011 jointly and severally liable to pay off the dues. The grounds raised in the writ petition are devoid of any merit. The writ petition is therefore, dismissed.