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2008 DIGILAW 178 (KER)

Abraham Jacob @ Rajan v. Thomas J. Nidhiri

2008-03-06

THOTTATHIL B.RADHAKRISHNAN

body2008
Judgment :- 1. The petitioners are tenants of a building belonging to the first respondent. Act 2/1965, namely, the Kerala Buildings (Lease and Rent Control) Act, 1965 governs the relationship between the petitioners and the first respondent. The first respondent turned out to be an abkari defaulter resulting in revenue recovery proceedings. The building in question has been attached. Following that, Ext.P6 has been issued by the Tahsildar directing the tenants (writ petitioners) to quit. Hence, this writ petition. 2. Though this Court had issued an interim order confining the order of stay to be one against dispossession only, even as of now, no sale has taken place. 3. Section 28 of the Abkari Act provides for recovery of duties whereby all amounts due to the Government may be recovered as if they were arrears of land revenue. Rule 5(22) of the Abkari Shops Disposal Rules, 2002, hereinafter referred to as the “Disposal Rules”, provides that the grant of privilege of vending toddy shall be subject to a condition that the purchaser, on whose name the privilege is granted and licence is issued, shall not be permitted to transfer or encumber any of his assets to the detriment of any amount due and any such transaction shall be deemed void to the extent of the sum so falls due. 4. Section 3 of the Kerala Revenue Recovery Act, 1968, hereinafter referred to as the “RR Act”, provides that the public revenue due on any land shall be the first charge on that land, the buildings upon it and on the produce thereof, “Public revenue due on land” is defined in Section 2(J) of the RR Act, to mean the land revenue Charged on the land and include all other taxes, fees and cesses on land whether charged on land or not, and all cesses or other dues payable to the Government on account of water used for purposes of irrigation. 5. By virtue of Section 28 of the Abkari Act, arrears under that Act will be treated as arrears of land revenue but, they do not become public revenue due on land as defined in Section 2(J) of the RR Act and therefore, would not fall within Section 3 for a preferential first charge. 5. By virtue of Section 28 of the Abkari Act, arrears under that Act will be treated as arrears of land revenue but, they do not become public revenue due on land as defined in Section 2(J) of the RR Act and therefore, would not fall within Section 3 for a preferential first charge. Even applying Rule 5 (22) of the Disposal Rules and Section 28 of the Abkari Act, the voidability of a transaction would arise only after the Commencement of the relationship between the State and the licensee in terms of the Abkari laws. 6. The aforesaid would show that when a defaulter neglects to pay on a demand under Section 7 of the RR Act, followed by a demand under Section 34 of that Act, prior to attachment, the collector is entitled to attach by following the procedure prescribed in Sections 35 and 36 of the RR Act. By such exercise, the property of the defaulter comes under the attachment by the District Collector under the RR Act. There is no transformation in the title to the property by such attachment. The management of property under attachment could be in terms of provisions referable from Section 37 onwards. If any person interested in the land desires to have the attachment lifted, he can take recourse to Section 47 and if any judgment creditor of the defaulter desires to do so, he may take recourse to Section 48. Those are measures which enable those having interest in the land under attachment or entitled to further claims against the defaulter, to protect the property from being sold off under the RR Act. 7. It is beyond dispute that it is only a sale that can result in the transfer to the title of the property from the defaulter to any other person. So long as the property continues to belong to the first respondent, the landlord-tenant relationship between the first respondent and the petitioners would continue to be governed by Act 2/1965 and an order of attachment under the RR Act would not cast any embargo on the flow of rights under that statute. 8. So long as the property continues to belong to the first respondent, the landlord-tenant relationship between the first respondent and the petitioners would continue to be governed by Act 2/1965 and an order of attachment under the RR Act would not cast any embargo on the flow of rights under that statute. 8. For the foregoing reasons, it has necessarily to be concluded that by merely making an order of attachment under the RR Act, a building tenant entitled to the benefit of Act 2/1965, cannot be deprived of the benefit of sub-section 1 of Section 11 of that Act. 9. In the result, Ext.P6 is quashed without, in any manner, interfering with any other proceedings, including for sale. The writ petition is allowed as above. No costs.