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2023 DIGILAW 37 (KER)

Bindu Kishore v. District Collector

2023-01-11

AMIT RAWAL

body2023
JUDGMENT Order dated 17.02.2022 of the Tahsildar ordering the attachment of land measuring 4.04 Ares situated in Sy.No.126/2 of Chendrappinni Village is under challenge on behalf of the petitioner. 2. Petitioner is stated to have received the land aforementioned vide settlement deed dated 10.05.2006 numbered as 1171/2006 registered with Thriprayar SRO from her mother in law who had paid the tax for the land all along, had no encumbrances over it and since then, the property is in possession and enjoyment of the petitioner. She was flabbergasted to receive a notice dated 20.12.2021 from the Tahsildar, Thaluk Office, Kodungallur, Thrissur, informing that her husband T.S.Kishore - 4th respondent in who’s name the property was before it came to the possession of her mother in law in 1996, had an outstanding liability of Rs.2,08,21,905/- on account of taxes due to the Government of Karnataka arising out his business of arrack in village Mandya, Karnataka District. Reply to the aforementioned show cause notice dated 05.01.202 Ext.P2 was submitted wherein it was stated that she was not a party and was not related to the subject matter, and before registration of the property due diligence was conducted and found that the property had no encumbrance on it, also ever since the registered sale deed was in possession, taxes were being paid by her. 3. Learned counsel appearing on behalf of the petitioner submitted that there is no compliance of the provisions of sub-section 3 of Section 44 of the Kerala Revenue Recovery Act, 1968 as no opportunity of hearing was given to the petitioner nor the Collector has initiated the action of obtaining an order from the competent court for the purpose of recovering the arrear of public revenue by passing the impugned order. In the absence of attachment of the property at the time of transfer, the property belonging to the petitioner, who may be wife of the 4th respondent, cannot be attached for the recovery of arrears due to the Government from the 4th respondent. The arrears are of the period 1991-92, thus clearly barred as per the provisions of Article 52 of the Limitation Act. 4. The arrears are of the period 1991-92, thus clearly barred as per the provisions of Article 52 of the Limitation Act. 4. On the other hand, learned State Counsel representing the Tahsildar opposed the aforementioned prayer and submitted that requisition dated 28.11.2014 from the Deputy Commissioner District Mandaya, State of Karnataka was received through District Collector, Thirssur, to realize the amount aforementioned i.e., Rs.2,08,21,905/- as abkari dues for the period 1991-1992 due from T.S.Kishore – 4th respondent, husband of the petitioner. Tahsildar issued a notice under Sections 7 and 34 of the Kerala Revenue Recovery Act on 14.09.2015 to the defaulter and came to know that the defaulter is not staying in the place but residing at Banglore. When the defaulter failed to remit the arrears and found no movable and immovable property in Kodungallur Taluk, steps were taken to attach the property transferred by him under Section 44 of the Kerala Revenue Recovery Act. On enquiry through Village Officer, it was revealed that the defaulter had possessed 0.0404H of land in Sy.No.126/2 of Chendrappinni Village as per the document bearing No.1616/1989 and in the year 1996 vide document bearing No.2479/1996 SRO Thriprayar was transferred to her mother namely Sujatha. The said transaction occurred after the abkari default period 1991-92. In other words, the land originally belonged to the defaulter and in order to escape from the liability, clandestinely transferred the property in favour of the mother and thereafter, the petitioner i.e., wife. The whole purpose was to defeat the recovery of dues. The steps under Section 44 are in compliance of the necessary procedure. Petitioner was heard and her request was found to be not satisfactory. Accordingly, impugned order was passed and urged this Court for dismissal of this writ petition. 5. I have heard the learned counsel for the parties and appraised the paper book. 6. It is a matter of record that the 4th respondent the husband of the petitioner owed money under the Abkari dues to the state of Karnataka for the period 1991-92 which kept on accumulating amounting to Rs.2,08,21,905/-. In order to defeat the process of recovery, had clandestinely, with intention to defeat the rights of the competent authority to recover the amount, transferred the document in the year 1996 in favour of his mother Sujatha and thereafter, to the petitioner in 2006. 7. In order to defeat the process of recovery, had clandestinely, with intention to defeat the rights of the competent authority to recover the amount, transferred the document in the year 1996 in favour of his mother Sujatha and thereafter, to the petitioner in 2006. 7. The relevant portion of impugned order reads thus: “Proceedings are pending in this office as per the Revenue Recovery Certificate issued by the District Collector to realize su a sum of Rs.20821905/- along with interest from Kishore, S/o Thashnath Sharamgadharan residing at Chendrappinni Village which he accrued for running arack business in Mandya Village, during the year 1991-92. On investigation it is understood that the defaulter, Shri. Kishore had during the period of arrears transferred 4.04 are of property under his ownership in survey no.126/2 of Chendrappinni Village, to his mother, Sujatha vide sale deed no.2479/96 of Chendrappinni Village on 11.11.1996. His Mother transferred the said property vide sale deed no.171/2006 bf Triprayar Village to Smt. Bindu Kishore, wife of Shri. Kishore. Hence, as per Section 44(3), Smt. Bindu Kishore in whose name the property vests has been issued with reference (2) notice. Further, as per reference 3 reply, the defaulter's wife Smt. Bindu Kishore appeared before this office through an advocate and submitted her reply along with documents and she was heard on 21.01.2022. However, since Smt. Bindu Kishore could not produce any relevant documents at the time of hearing to prove that the property was s not transferred at the time the arrears were due, the claim of Smt. Bindu Kishore over 4.04 are of land in survey no.126/2 of Chendrappinni Village is hereby rejected and ordered accordingly. Therefore it is ordered that, as per RR S.44(3) the property measuring 4.04 are of land in survey no.126/2 of Chendrappinni Village will be attached and proceeded against to realize the arrears.” 8. Section 44 of the Kerala Revenue Recovery Act reads as under: “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. Section 44 of the Kerala Revenue Recovery Act reads as under: “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 the property so transferred, as if such transfer had not taken place: Provided that, before proceeding to attach such property, the Collector or the authorised officer shall- • give the defaulter an opportunity of being heard; and • record 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.” 9. On perusal of the aforementioned provisions, it is evident that defaulter transferred the immovable property to near relative or for grossly inadequate consideration after the public revenue had become due on any land in arrear, it shall be presumed until the contrary is proved that transfer was made with an intention to defeat or delay the recovery of such arrear and in this regard the Collector or the authorised officer may, subject to the order of the competent Court, “proceed to recover to such arrears of public revenue by attachment and sale of property so transferred, as if the transfer had not taken place”. Initially the transfer in 1996 in favour of Sujatha was effected when the arrears of 1992 had already become due. Initially the transfer in 1996 in favour of Sujatha was effected when the arrears of 1992 had already become due. The present petition is nothing but an attempt to prolong the recovery proceedings by lapse of time as well as tire out the competent authority to recover the amount. The dues of the Government cannot be warded off in the manner as attempted to be made. Procedure prescribed under the Act have been followed. Petitioner cannot be permitted to raise a point of non-compliance of principles of natural justice. I do not find any illegality in the order under challenge. No ground for interference is made out. Writ petition is dismissed.