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2017 DIGILAW 1268 (KER)

N. Sekharan Nair v. State of Kerala

2017-10-06

SHAJI P.CHALY

body2017
JUDGMENT : 1. Petitioner in W.P.(C) No.8257 of 2013 is the 5th respondent in the other captioned writ petition. The writ petitions are materially connected in respect of the revenue recovery proceedings initiated against the petitioners in the writ petitions for arrears of kisth. Therefore, I heard them together and propose to deliver a common judgment. 2. Petitioner in W.P.(C) No.8257 of 2013 is the owner in possession of an extent of 75 cents of property comprised in Survey Nos.82/7A and 82/7B in Kadakarapalli in Cherthala North Village. Petitioner was allegedly working in Tamil Nadu Electricity Board from 1965 till his retirement in the year 1996. According to the petitioner, petitioner’s sister late Smt. Ambika Devi was residing very near to the property of the petitioner. Praveen Kumar, son of Ambika Devi was engaged in abkari business along with certain other persons including the 6th respondent in the writ petition viz., K.N. Gireesh. The abkari business run by the said persons failed, consequent to which, the said persons have shifted their residence to Thodupuzha. Smt. Ambika Devi expired on 04.09.2002. Her husband Padmanabha Pillai was a retired Circle Inspector of Excise also died on 29.11.2002. 3. According to the petitioner, forging solvency certificate relating to the landed property of the petitioner and by impersonation, petitioner’s nephew viz., Praveen Kumar managed to get the abkari business. Petitioner did not know about the malpractice committed by his relatives. However, when property of the petitioner was proceeded with, petitioner has approached this Court by filing O.P.No.2180 of 1995. As per Ext.P2 interim order, a Division Bench of this Court constituted an investigation team to enquire into the matter, and the investigating officer submitted Ext.P3 report, pointing out that petitioner is innocent and has not executed any document in favour of the Excise Department, and further that the solvency certificate was obtained based on forged documents and somebody impersonated the petitioner and participated in the auction. Anyhow, the original petition was finally dismissed by a Division Bench of this Court as per Ext.P4 judgment dated 17.05.2005. According to the petitioner, Ext.P3 enquiry report had not taken into account by the Division Bench. 4. Anyhow, being aggrieved by Ext.P4 judgment, petitioner approached the apex court by preferring Special Leave Petition, which was disposed of as per Ext.P7 judgment in S.L.P (C) No.15208 of 2005 dated 24.08.2009. According to the petitioner, Ext.P3 enquiry report had not taken into account by the Division Bench. 4. Anyhow, being aggrieved by Ext.P4 judgment, petitioner approached the apex court by preferring Special Leave Petition, which was disposed of as per Ext.P7 judgment in S.L.P (C) No.15208 of 2005 dated 24.08.2009. Since the petitioner sought permission to file revision petition before the Board of Revenue, Kerala, all the parties were given the liberty to raise the contentions open to them. Allegations were made by the petitioner against two Advocates of this Court who have attested the vakalath of the petitioner, however, while disposing of the S.L.P., it was recorded by the apex court that no relief would be sought against the impleaded parties, viz., the advocates, and accordingly, they were deleted from the party array. 5. Accordingly, petitioner filed a revision under Sec.83 of the Kerala Revenue Recovery Act before the Board of Revenue, which was also dismissed as per Ext.P8 order. Ext.P8 order was challenged by the petitioner in W.P.(C) No.1279 of 2011 before this Court. However, the same was dismissed as per the judgment dated 06.09.2011. Even though petitioner preferred W.A.No.1573 of 2011, the Division Bench directed the petitioner to approach the 1st respondent by preferring a revision petition. Thereupon, petitioner preferred Ext.P9 revision before the State Government, in which Ext.P10 stay order was obtained. However, later, the revision was dismissed by Ext.P11 order by the 1st respondent. The thrust of the contention of the petitioner is that, in Ext.P11, the 1st respondent failed to consider, as to whether the petitioner is liable to pay the amount on the ground that there is no power for the 1st respondent to adjudicate the issue except procedural irregularities in the revenue recovery matter. It is thus challenging Ext.P11, the said writ petition is filed. 6. W.P.(C) No.10221 of 2009 is filed by the petitioners who are the owners of properties as per the partition deed No.2135/1959 of S.R.O., Cherthala dated 19.07.1959, which property was proceeded with to recover the kisth arrears in the business conducted by the 1st petitioner along with the 5th respondent viz., the petitioner in the other writ petition. According to the petitioners, they have furnished security for Rs. 14,12,100/- and a solvency certificate was also submitted for the said sum. The licence was cancelled. According to the petitioners, they have furnished security for Rs. 14,12,100/- and a solvency certificate was also submitted for the said sum. The licence was cancelled. Subsequently, there was a default in the payment of kisth from the month of May, for which revenue recovery proceedings were initiated by the Government, and notices were issued to the 1st petitioner and the petitioner in the other writ petition. According to the petitioners, the amount due from the 1st petitioner was Rs. 43,14,601/- and the amount due from the 5th respondent was Rs. 39,36,313/- with interest at the rate of 18% from 01.04.1994, evident from Ext.P1. 7. The demand notices were challenged by the petitioner before this Court, but without any fruitful results. The 2nd and 3rd petitioners filed O.S.No.1052 of 2002 before the Munsiff’s Court, Cherthala for effecting partition of the property specified above. Partition was effected, however, the property was proceeded with by the Government. At that stage, petitioners have approached this Court by filing W.P.(C) No.7985 of 2005. However, no stay was granted by this Court and recovery was directed to be proceeded with, against which, petitioners have preferred W.A.No.2459 of 2008, however, it was dismissed confirming the order of the learned Single Judge. According to the petitioners, the petitioners properties are being proceeded with without being proceeded against the property of the petitioner in the other writ petition. It is also contended that, the parties have responsibilities up to the extent of the security provided since the parties were partners in an abkari business. The contention of the petitioner in the other writ petition with respect to the forgery are all denied by the petitioners. 8. Counter affidavits are filed by respondents 2 and 3 in W.P.(C) No.8257 of 2013, disputing the allegations and the claims and demands raised by the petitioner. According to the respondents, the judgment rendered by the Division Bench of this Court viz., Ext.P4 and the findings contained there under are binding on all the parties. Even though an S.L.P was preferred by the petitioner therein, the same was virtually withdrawn by the petitioner, after seeking permission to move the Board of Revenue. According to the respondents, the judgment rendered by the Division Bench of this Court viz., Ext.P4 and the findings contained there under are binding on all the parties. Even though an S.L.P was preferred by the petitioner therein, the same was virtually withdrawn by the petitioner, after seeking permission to move the Board of Revenue. Therefore, according to the respondents, the findings rendered in Ext.P4 judgment was not interfered with by the Supreme Court, and therefore, neither the Board of Revenue nor the State Government was at liberty to interfere with the Division Bench judgment of this Court. 9. In the other writ petition also, counter affidavits are filed by the respondents refuting the allegations and claims and demands raised by the petitioners therein. 10. Heard learned counsel for the petitioners in the writ petitions and the learned Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties. 11. The sole question to be considered is whether any manner of interference is justified in Ext.P11 order passed by the State Government, which is under challenge in W.P.(C) No.8257 of 2013. In my considered opinion, neither the Board of Revenue nor the State Government did not have any liberty to consider the issues raised by the petitioner with respect to forgery of the documents to rope in the petitioner in the abkari business, since the said issue was considered by this Court in Ext.P4 judgment and has clearly entered into a finding that Ext.P3 report submitted by the Special Investigation Team constituted as per the interim order in the said original petition cannot be believed at all. Findings are rendered there under to the effect that the petitioner is not entitled to get any relief on the basis of the allegations made against the partner of the abkari business. It was held by this Court at paragraph 20 of Ext.P4 judgment that the report is not satisfactory and the version of the first petitioner has not been appropriately ascertained, and it will be risky to rely on the report for any purpose. Consequently, the crime registered as 201/2004 in the Pattanakad Police Station was directed to be discontinued. Other findings are also rendered. 12. Consequently, the crime registered as 201/2004 in the Pattanakad Police Station was directed to be discontinued. Other findings are also rendered. 12. However, learned counsel for the petitioner in W.P. (C) No.8257 of 2013 has raised a legal question as regards merger of Ext.P4 judgment of the Division Bench in Ext.P7 order of the apex court. The apex court has in fact disposed of the Special Leave Petition in view of the fact that petitioner intended to file a revision before the Board of Revenue, as disputed questions of fact were raised in the matter. But, it was specifically observed there under that, “it will also be open to all the parties to raise the contentions open to them”. Now the question is whether the order so passed can be said to be merged in Ext.P4 judgment of the Division Bench of this Court. Going by the settled proposition of law, the doctrine of merger postulates that where an order or a decree of a court, authority or tribunal is subjected to an appeal or revision and the revisional or appellate authority passes an order modifying, reversing or affirming the original order, the original order merges with the order of the superior court or authority, on the foundational and well accepted principle that, there cannot be more than one order operating at same point of time. It is also well settled that, the judgment or order having been dealt by a superior forum and having resulted in confirmation, reversal or modification, what merges is the operative part, i.e. the mandate or the finding expressed in a positive or negative form. 13. The apex court considered the question in ‘Commissioner of Income Tax, Bombay v. Amritlal Bhogilal and Co.’ [ AIR 1958 SC 868 ], and observed that the doctrine of merger is not a doctrine of rigid and universal application. The application of the doctrine depends on the nature of the appellate or revisional order in each case, and the scope of the statutory provision conferring the appellate or revisional jurisdiction. Basically therefore, unless the appellate authority has applied its mind to the original order or any issue arising in appeal while passing the appellate order, one should be careful in applying the doctrine of merger to the appellate order. 14. Basically therefore, unless the appellate authority has applied its mind to the original order or any issue arising in appeal while passing the appellate order, one should be careful in applying the doctrine of merger to the appellate order. 14. As I have pointed out earlier, the order was passed in Special Leave, on the basis of leave sought for by the petitioner to move the Board of Revenue, but at the same time, leaving open the liberty of all parties to raise all contentions. Which thus means, State and other parties were always at liberty to rely upon the findings rendered in Ext.P4 judgment by the Division Bench of this Court. Be that as it may, it is relevant to note that the apex court never interfered with the Division Bench judgment and therefore, the findings rendered there under were binding on the petitioner, Board of Revenue and the State. Learned counsel for the petitioner has invited my attention to the judgment of the apex court in ‘Shanmugavel Nadar v. State of Tamil Nadu’ [ 2002 (8) SCC 361 : 2002 KHC 1059] and a Division Bench judgment of this Court in ‘Mathai and others v. Thomas and others’ [2017 (2) KHC 594 : 2017(2) KLT 425 ]. Paragraph 17 of the judgment in ‘Shanmugavel Nadar’ (supra) is relevant, which read thus: “17. We are clearly of the opinion that in spite of the dismissal of the appeals on 10.09.1986 by this Court on the ground of non-joinder of necessary party, though the operative part of the order of the Division Bench stood merged in the decision of this Court, the remaining part of the order of the Division Bench of the High Court cannot be said to have merged in the order of this Court dated 10.09.1986 nor did the order of this Court make any declaration of law within the meaning of Art.141 of the Constitution either expressly or by necessary implication. The statement of law as contained in the Division Bench decision of the High Court in M. Varadaraja Pillai’s case would therefore continue to remain the decision of the High Court, binding as a precedent on subsequent benches of coordinate or lesser strength but open to reconsideration by any bench of the same High Court with a coram of judges more than two.” 15. Therefore, it is evident that the apex court on the issue on hand never intended to interfere with Ext.P4 judgment of this Court, and thereupon, it is remaining intact with all its binding nature on the subordinate authorities. The judgment of this Court in ‘Mathai and others’ (supra) is rendered on different facts and circumstances, and has no bearing to the issues involved in these writ petitions. 16. I have gone through Ext.P11 order passed by the State Government, wherein these aspects were considered by the State Government in its entirety, and has arrived at a finding that petitioner is liable to be proceeded with to recover the abkari kisth amount. In my considered opinion, opportunity was provided to the petitioner, the entire aspects were considered, taking into account Ext.P4 Division Bench judgment rendered by this Court, and Ext.P7 order in the S.L.P preferred before the apex court. Therefore, I do not find any illegality, arbitrariness or other legal infirmities justifying any interference in Ext.P11 order passed by the State Government. 17. I also find that the orders passed by other statutory authorities, which were confirmed in Ext.P11 are also in accordance with law. That apart, learned counsel for the petitioners in the other writ petition has brought to my notice a judgment of this Court in W.P.(C) No.9854 of 2005 dated 22.05.2008, wherein the petitioner in W.P.(C) No.8257 of 2013 is the petitioner. Apparently, it seems that the challenge there under is also in respect of the recovery action initiated against the petitioner herein. This is quite evident from Ext.P2, which is the interim order passed by this Court in O.P.No.2180 of 1995 dated 22.01.2004. This material fact is suppressed. The said writ petition was dismissed following Ext.P4 judgment of the Division Bench. Therefore, in my considered opinion, the petitioner is not at liberty to re-agitate the issue time and again. 18. Taking into account all these aspects, I do not find any reason to grant any reliefs as is sought for in the writ petition. So far as W.P.(C) No.10221 of 2009 is concerned, it is admitted therein that the petitioners have liability. The main relief sought for in the writ petition is that they shall not be proceeded with until final adjudication of the S.L.P pending before the Supreme Court, and also to declare that the 1st petitioner is liable only for 50% of the liability. The main relief sought for in the writ petition is that they shall not be proceeded with until final adjudication of the S.L.P pending before the Supreme Court, and also to declare that the 1st petitioner is liable only for 50% of the liability. Therefore, taking into account all the inputs and considering the developments that have taken place during the pendency of this writ petition, nothing remains to be considered, especially in view of the peculiar facts and circumstances on board. I make it clear that the petitioners shall be proceeded with, in accordance with law, taking into account the observations and directives, contained in Ext.P4 judgment produced in W.P.(C) No.8257 of 2013 and others if any. Resultantly, writ petitions fail, and they are accordingly dismissed.