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Jameela Bose Vs. State of Kerala and Others - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberW.P.(C) No. 31818 of 2006
Judge
AppellantJameela Bose
RespondentState of Kerala and Others
Excerpt:
.....that is not applicable to the property in question in so far as the transfer took place before the revenue recovery notice has been issued for recovery of the amounts due - call for the records leading to the attachment of the property covered by sale deed in file and quash the same -writ of mandamus or such other writ, order or direction directing the 3rd and 4th respondents to exclude the property covered by sale deed from the attachment proceedings effected pursuant to recovery proceedings initiated against the 5th respondent- to grant stay of all further proceedings for sale of the property in pursuance of the recovery proceedings initiated against the 5th respondent pending disposal of the writ petition.” petitioner is none other than the brother’s wife of the 5th..........in favour of the petitioner. the said property has been proceeded against under s.44 of the kerala revenue recovery act, 1968 for amounts due from the 5th respondent to the government. that is under challenge in this writ petition. the contention is that, s.44 is not applicable to the property in question in so far as the transfer took place before the revenue recovery notice has been issued for recovery of the amounts due. the petitioner seeks the following reliefs: “i) call for the records leading to the attachment of the property covered by ext.p1 sale deed in file no.b2-7/2005 of the tahsildar, cherthalla and quash the same to the extent in includes the property covered by ext.p1 sale deed; ii) issue a writ or mandamus or such other writ, order or direction directing the 3rd.....
Judgment:

S. Siri Jagan, J.

1. The petitioner is the brother’s wife of the 5th respondent. Amounts are due to the Government from the 5th respondent. By Ext.P1 sale deed dated 25.10.2003, the 5th respondent transferred certain properties belonged to him in favour of the petitioner. The said property has been proceeded against under S.44 of the Kerala Revenue Recovery Act, 1968 for amounts due from the 5th respondent to the Government. That is under challenge in this Writ Petition. The contention is that, S.44 is not applicable to the property in question in so far as the transfer took place before the revenue recovery notice has been issued for recovery of the amounts due. The petitioner seeks the following reliefs:

“i) call for the records leading to the attachment of the property covered by Ext.P1 sale deed in File No.B2-7/2005 of the Tahsildar, Cherthalla and quash the same to the extent in includes the property covered by Ext.P1 sale deed;

ii) issue a writ or mandamus or such other writ, order or direction directing the 3rd and 4th respondents to exclude the property covered by Ext.P1 sale deed from the attachment proceedings effected pursuant to recovery proceedings initiated against the 5th respondent.

iii) to grant stay of all further proceedings for sale of the property covered by Ext.P1 sale deed in pursuance of the recovery proceedings initiated against the 5th respondent (File No.B2.67/2005-Tahsildar, Cherthallai), pending disposal of the Writ Petition.”

2. Originally a counter affidavit dated 23.10.2008 was filed by the 3rd respondent wherein the detailed dates regarding when the amount became due from the 5th respondent, when notice of demand was issued to him etc., were not stated. When the matter was heard on 19.10.2011, I directed the Government Pleader to see that an additional affidavit is filed stating the entire facts relating to the matter including as to when exactly the amounts became due and detailing other facts in respect of the subject matter. Pursuant thereto, an additional counter affidavit has been filed, wherein it is stated thus:

“2. It is submitted that this additional counter affidavit is necessitated as the petitioner had not impleaded the Block Development Officer, Thyckattusseri in the Writ Petition. Respondent 5, the defaulter is playing behind the curtain. The writ petitioner itself is misconceived. The petitioner herein is the wife of the direct brother of 5th respondent. The 5th respondent entered into an agreement with the Block Development Officer on 16.4.1999 for the construction of a “Samskarika Nilayam” at Perumbalam Grama Panchayath in Thyckattusseri block. The construction was to be done from the fund graciously given by Sri. Vayalar Ravi, M.P. under the Member of Parliament Local Area Development Scheme (MPLADS). Photo copy of the agreement entered into between the 5th respondent with the Block Development Officer, Thyckattusseri dated 16.4.1999 is produced herewith and marked as Exhibit R3(a). It is categorically stated that the work should be completed before 31.7.1999. Further clause 8 of the Ext.R3(a) reads as follows:

“All sums found due to the Government under or by virtue of the present contract shall be recoverable from the convenor and his properties, movable and immovable, under the provisions of the Revenue Recovery Act for the time being in furtherance through the same were arrears of revenue or in any other manner as the Government may deem fit”.

Pursuant to Ext.R3(a) the Block Development Officer, Thyckattusseri released a total amount of `1.75 lakhs on 24.6.1999, 2.8.1999, 12.6.2000 and 24.8.2000 respectively by way of mobilization advance. The contractor/convenor did not complete the work in time. The Block Development Officer has been directing the 5th respondent to complete the work since 31.7.1999. Thereafter the Block Development Officer again sent a notice to the 5th respondent on 18.5.2002. Photocopy of the notice is produced herewith and marked as Exhibit R3(b).

3. Admittedly Ext.P1 sale deed was executed by the 5th respondent in favour of the petitioner on 28.10.2003 after the receipt of the Ext.R3(b) notice of demand. The amount fell due and is continuing as due from the year 2001 onwards since in spite of the repeated request the 5th respondent did not completed the work pursuant to Ext.R3(a) agreement. Even now the work was not completed resulting in the complete wastage of public money. Knowing fully well about the arrears due to the Government, the petitioner did not approach the revenue authorities for transfer of registry of the land allegedly purchased by her by Ext.P1. Even before and after the execution of Ext.P1 5th respondent had transferred his entire properties anticipating revenue recovery action, in favour of his closes relatives. Hence this collusive Writ Petition may be dismissed with compensatory cost to the respondent.”

3. I have considered the rival contentions in detail.

4. At the outset, I am of opinion that, insofar as the petitioner is none other than the brother’s wife of the 5th respondent, the entire transaction has to be viewed in that light. The 5th respondent has not chosen to contest the matter. Going by the additional counter affidavit, the amounts from the 5th respondent became due to the Government atleast in 1999. The Block Development Officer issued Ext.R3(b) dated 18.5.2002 to the 5th respondent. S.44 of the Kerala Revenue Recovery Act reads as follows-.

44. Effect of engagements and transfers by the defaulter.-(1) Any engagement entered into by the defaulter with any one in respect of any immovable property after the service of the written demand on him shall not be binding upon the government.

(2) Any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrear, with intent to defeat or delay the recovery of such arrear, shall not be binding upon the Government.

(3) Where a defaulter transfers immovable property to a near relative or for grossly inadequate consideration after public revenue due on any land from him has fallen in arrear, it shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear, and the Collector or the authorised officer may, subject to the order of a competent Court, proceed to recover such arrear of public revenue by attachment and sale of property so transferred, as if such transfer has not taken place:

Provided that, before proceeding to attach such property, the Collector or the authorised officer shall-

(i) give the defaulter an opportunity of being heard; and

(ii) records his reasons therefor in writing.

Explanation.-For the purposes of this section, “near relative” includes husband, wife, father, mother, brother, sister, son, daughter, step son, step daughter, uncle, aunt, son-in-law, daughter-in-law, brother-in-law, nephew or niece of the transferor.”

5. One of the contentions raised by the petitioner is that, the relevant date for the purpose of S.44 is the date when a notice under the Revenue Recovery Act is issued to the defaulter. I am of opinion that, such a strict interpretation of S.44 would defeat the very purpose of the Revenue Recovery Act. A defaulter will certainly know when exactly the defaulted became due from him. It is common knowledge that revenue recovery proceedings follows much later. So if the interpretation sought to be put by the petitioner on S.44 is accepted, the defaulter will have plenty of time to dispose of his assets before the revenue recovery notice visit him. Therefore, I am inclined to construe the “written demand” mentioned in S.44 as the date when the appropriate authority serves a written demand on the defaulter and not the date when the revenue recovery authorities issue a demand notice under S.34 as contended by the petitioner.

6. The petitioner would raise another contention that insofar as the amount now demanded is not an arrear due on any land, that amount will become arrears due on land only when the demand notice under the Revenue Recovery Act is served on the defaulter. I am not inclined to adopt that construction also. For recovery of amounts other than the arrears of revenue due on land, when Revenue Recovery Act is invoked, the provisions of the Revenue Recovery Act has to be applied mutatis mutandis for recovery of such amount substituting the words ‘arrears of revenue due on land’ by words relating to the Government dues sought to be recovered. Therefore, the relevant date for the purpose of this case is atleast 18.5.2002 when the Block Development Officer issued a notice to the 5th respondent demanding the amount, if not earlier insofar as the amount became due as early as in 1999 itself.

7. The petitioner would raise another contention that S.44(3) cannot be applied to the transaction between the petitioner and the 5th respondent since sister-in-law is not included in the Explanation given to the words “near relative” in sub-s.(3). I am not inclined to accept that contention also. Going by the General Clauses Act, the word ‘brother-in-law’ which occurs in the Explanation would include ‘sister-in-law’ as well.

For all the above reasons, I am not inclined to accept the contentions of the petitioner. I am of opinion that, S.44 squarely applies to Ext.P1 transfer of property by the 5th respondent to the petitioner. In the above circumstances, this Writ Petition is dismissed.


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