The petitioner is aggrieved by the recovery proceedings initiated against his properties, which he had purchased on 25.06.1998, by separate sale deeds, produced as Exts.P1 and P2. The petitioner had effected mutation of the property and also had been paying land tax, with respect to both the properties, as is evidenced by Ext.P3. Subsequently, attachment was made by Exts.P4 and P5, on the properties, which are comprised in Sy. Nos.41/6 and 44/7 of Panangad Village. Ext.P5 indicates that the attachment was with respect to abkari arrears, pending against one Sri. A.S Sudheesh, the vendor in Exts.P1 and P2. The abkari arrears were said to have arisen in the year 1997-1998 and hence, under Section 44 of the Kerala Revenue Recovery Act, 1968 the transactions evidenced by Exts.P1 and P2 were held to be of no consequence since, according to the State, the same was intended at defeating the recovery of arrears, due to the State. 2. The petitioner, moved the authority under the Revenue Recovery Act, with Ext.P6 and the same was rejected by Ext.P7. Ext.P7 reiterated that since the conveyance was effected in the period in which the arrears had arisen; under Section 44, the same is liable to be ignored while proceeding against the property, with respect to the dues of the predecessor-in-interest.
3. It is to be pointedly noticed that the State does not have a case that under the Abkari Act, there is a charge created on the defaulted dues, of a licensee under the Act, nor is it evident from the enactment. With respect to Section 44 of the Revenue Recovery Act, it only deals with engagements and transfers by the defaulter after the service of the written demand on the defaulter. Further more, as per sub-section (2) of Section 44, a transfer is hit by the said provision, only when the transfer of immovable property is with the intent to defeat or delay the recovery of such arrears.
4. In such circumstance, what is to be looked at, is the manner and procedure, under which recovery was sought to be effected in the instant case. The requisition itself is dated 30.01.1999, which is after the sale, as stated in the counter affidavit. Demand notice was dated 10.02.1999 which was issued under Section 7 and 34 of the RR Act. Hence, evidently, the transaction is seen effected prior to the notice under the RR Act. Further the Government, but for making an assertion that it was with an intent to defeat the arrears, does not rely on any substantial material, to support the assertion.
5. In Special Tahsildar v. Vasu reported in 2006(4)KLT 557, a Division Bench of this Court categorically found that, the entire stress in Section 44 is on the demand made by the Government; on the defaulter. If the transfer is after service of demand under the Act and with intent to delay or defeat the recovery, the same is not binding on the State. That was a case in which the revenue recovery proceedings proceeded with under Section 44 was challenged on the ground that there was no attachment prior to the transaction entered into therein. The Division Bench held that there is no requirement of attachment and service of notice would attract Section 44. Any transfer made subsequent to that, to delay or defeat the recovery, would be of no consequence insofar as the proceedings by the State, under the Revenue Recovery Act is concerned.
6. Apposite is another decision of this Court reported in Abraham Jacob @ Rajan and other v. Thomas J Nidhiri [2008(2)KHC 180] wherein the issue of a charge under the Abkari Act was considered and negatived. A learned Single Judge of this Court found that, though the dues under the Abkari Act, can be recovered as public revenue due on lands, that does not change the character of the dues and make it a public revenue due on land for the purpose of Section 3 of the Revenue Recovery Act. Hence, there can be no charge on the property under Section 3 of the Revenue Recovery Act.
7. For the aforesaid reasons, emanating from the binding precedents, Ext.P5 and P7 are set aside. There shall be no attachment on the property as indicated in Exts.P5 and P7. The petitioner shall be free to deal with such property de- hors any attachment on the property, which is the subject matter of the above writ petition.
Writ petition allowed. No costs.
Sd/-
(K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge