The prayers in this writ petition are as follows: "i. issue a writ of certiorari or other appropriate order or direction to quash Exhibit P14.
ii. issue a writ of mandamus or other appropriate order or direction to direct the respondent not to proceed against petitioner's property covered under Ext.P1 sale deed for the alleged dues of the "defaulter" who transferred the property way back in 1991. iii.to declare that revenue recovery proceedings pursuant to Ext.P4 cannot be pressed into service against the properties of the petitioner covered by Ext.P1 sale deed."
2. Heard the learned Senior Counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents.
3. It is submitted that the petitioner had purchased 60.5 cents of property by Exhibit P1 document dated 25.11.2000. Exhibit P2 encumbrance certificate dated 17.11.2000 is produced to contend that there was no encumbrance over the property when the petitioner purchased the same. It is submitted that the property had been settled in favour of one WP(C).9243/14 2 P.K.John on 23.3.1991. The said P.K.John had sold the property to one Ratnamma on 5.12.1991 and thereafter by two sale deeds dated 16.5.1994 and 7.7.1994, Ratnamma had sold the property to one Antony Joseph, the vendor in Exhibit P1. Antony Joseph had also paid land tax in respect of the property. Thereafter, Exhibit P1 sale deed was executed and the petitioner came into possession of the property. He also obtained transfer of registry to his name and paid land tax in respect of the property.
4. While so, Exhibit P4 notice dated 1.8.2009 was issued to him. It was stated in the notice that proceedings had been initiated under the Kerala Revenue Recovery Act, 1968 (for short, 'the Act') against P.K.John, Pattarayil Veedu, Muhamma by the District Collector on 18.12.2006 and further steps had been taken by the Tahsildar (RR) on 15.12.2007. It is stated that the property was registered in the basic tax register in the name of the father of P.K.John, and registry was transferred to the name of Antony, S/o.Joseph on 14.10/1996. It is stated that registry of the property was transferred in the name of the petitioner thereafter. The notice states that since the transfers had been effected "after proceedings under the Act had been initiated" against the defaulter, Section 44 of the Act would be WP(C).9243/14 3 applicable and the petitioner was required to show cause why action shall not be taken against the petitioner's property for recovery of amounts due from P.K.John, who was the defaulter. It is pertinent to note that no details of default was available in Exhibit P4. The petitioner had preferred Exhibits P5 and P6 replies pointing out that going by Exhibit P4, revenue recovery proceedings had been initiated for the first time only in 2006. It was contended that the prior transfers, which were effected from December, 1991 onwards, had become final and the petitioner who was a bona fide purchaser for consideration of the property in the year 2000, was not liable for any dues as against P.K.John, who had sold the property as early as in 1991. The petitioner by Exhibit P6 had also sought for copies of the proceedings of the District Collector and the Tahsildar (RR) referred to in Exhibit P4. When no steps were taken thereon, the District Collector had been addressed with Exhibit P7 legal notice which also sought for information under the Right to Information Act. The informations sought for in Exhibit P7 are as follows:
"(1) To which years do the alleged dues of Sri.P.K.John Pattara, relate.
(2) When was the assessment of Sri.P.K.John relating to the years in dispute, completed and the WP(C).9243/14 4 assessment orders issued.
(3) When was R.R proceedings initiated against this property for the first time."
5. By Exhibit P14 proceedings, the Additional Tahsildar, Cherthala had considered the replies preferred by the petitioner by Exhibits P5 and P6 and issued an order rejecting the claim of the petitioner. It was stated in Exhibit P14 that the registry of the land in question had been transferred in the petitioner's name after Exhibit P1 on 27.3.2001. It is stated that sales tax dues were pending against Sri.P.K.John from 1987- 1988 onwards. It is therefore stated that since the transfers effected by P.K.John were after the sales tax arrears fell due, the transfers are hit by Section 44 of the Act.
6. By Exhibit P8 proceedings dated 2.2.2010, the District Collector had informed the counsel of the petitioner that the sales tax arrears relate to the years 1987-88, 1990-91, 1991- 92, 1992-93 and 1993-94. However, it is contended that as per Exhibit P9, the District Collector had required the Commercial Tax Officer to give the petitioner the details regarding the orders of assessment and the dates on which such assessments were completed. Exhibit P9 is the communication to this effect. However, when the details regarding the orders of assessment and the information of revenue recovery WP(C).9243/14 5 proceedings were forwarded by the office of the Commercial Tax Officer, 4th Circle, Thrissur, by Exhibit P11, it was seen that the proceedings related to the year 1990-91 onwards. However, the first of the orders on which the revenue recovery proceedings were based was one passed on 18.7.1998. The revenue recovery certificate and the number and date thereof would show that first of such certificates was issued on 28.9.1998. The petitioner therefore contends that evidently, the findings in Exhibit P14 to the effect that the transfers of property had been effected at a time when revenue recovery proceedings were pending against the original defaulter was a completely erroneous statement and that Exhibit P14 therefore cannot be sustained.
7. A counter affidavit has been filed on behalf of the 5th respondent again contending that sales tax dues relate to the period 1987-88 onwards. However, no details of any assessment with respect to the dues for the year 1987-88 have been mentioned in the counter affidavit also. The stand taken in the counter affidavit is also to the effect that the transfer made in 2000 in favour of the petitioner is hit by Section 44(2) of the Act and that the transfer of immovable property made by a defaulter after public revenue due on any land from him has WP(C).9243/14 6 fallen in arrear with intent to defeat or delay the recovery of such arrear shall not be binding on the Government. Going by the counter affidavit, the dates of transfers of the property as claimed by the petitioner in Exhibit P5 explanation are not disputed. There is no denial of the fact that P.K.John, the alleged defaulter came into possession of the property by partition/settlement deed dated 28.3.1991. It is also not in dispute that he had sold the property to Ratnamma on 5.12.1991 and the said property had again been transferred to the petitioner's vendor by sale deeds dated 16.5.1994 and 7.7.1994. The purchase of the property by Exhibit P1 by the petitioner and the transfer of registry to his name in 2001 are not in dispute. Exhibit P4 notice as well as the final order issued as Exhibit P14 proceed on the basis that the transfer in question is hit by the provisions of Section 44 of the Act. Section 44(2) of the Revenue Recovery Act, 1968 reads as follows:
"44. Effect of Engagements and transfers by the defaulter: (1) xx xx (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."
WP(C).9243/14 7
8. It is contended by the learned Senior Counsel appearing for the petitioner that to attract Section 44 of the Act, the conditions that the immovable property should have been sold after service of the written demand in terms of Section 7 or 34 of the Act on the defaulter and a finding that the transfer of property was made by the defaulter with an intent to defeat or delay the recovery of such dues, have to be met. Therefore, the essential question to be considered is whether the first transfer by the defaulter on 5.12.1991 was at a time when public revenue due on land had fallen in arrear. Going by the information provided in Exhibit P11, the first order with regard to assessment under the Sales Tax Laws was one rendered on 18.7.1998. In Exhibit P14 as also the counter affidavit filed by the 5th respondent, no details of the date on which amounts became due from the defaulter have been provided. From a reading of Exhibits P4 and P14, it appears that the revenue recovery proceedings had been initiated only in 2006. Even going by the details provided in Exhibit P11, the first revenue recovery certificate was one issued on 28.9.1998. It is not in dispute that the first transfer effected by the defaulter was in the year 1991. Even going by Exhibit P1, it is clear that the vendor in Exhibit P1 had acquired title over the WP(C).9243/14 8 property by sale deeds in 1994. The notices issued to the petitioner were under Section 44 of the Act. There is absolutely no material on record including in any of the orders or the counter affidavit filed in this case to show that any revenue recovery proceedings had been initiated as against the defaulter at the time when he had initially sold the property in 1991 or at the time of the sale of the property to the petitioner's vendor in Exhibit P1. Even at the time when the petitioner had purchased the property in the year 2000, it appears that no notice had been issued as against the property.
In the above view of the matter, I am of the opinion that Exhibit P14 order cannot be sustained. Exhibit P14 is, therefore, set aside. It is declared that revenue recovery proceedings cannot be initiated against the petitioner's property covered by Exhibit P1 sale deed for the arrears due from P.K.John.
The writ petition is ordered accordingly.
ANU SIVARAMAN JUDGE vgs10/10