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2023 DIGILAW 509 (KER)

Abdulrahiman v. Government of Kerala

2023-07-05

SATHISH NINAN

body2023
JUDGMENT : The suit challenging revenue recovery proceedings, was dismissed by the trial court. The plaintiff is in appeal. 2. Ext.A5 is the revenue recovery notice dated 07.10.1996 issued against the plaintiff. The plaintiff was the convener in respect of a scheme for construction of houses for girijan colonies. Five houses were to be constructed in each of the three colonies. The estimated cost was Rs.12,500/- per house. The payment towards the construction was to be paid stage-wise. Admittedly the work was not completed. Revenue recovery proceedings were initiated against the plaintiff alleging that though the value of the constructions effected by him was only Rs.94,555/-, the amount received by him is Rs.1,57,805/-. 3. The trial court raised an issue with regard to the maintainability of the suit in view of Section 72 of the Revenue Recovery Act. It was held that the suit is not maintainable and the suit was dismissed. 4. Heard learned counsel for the appellant and the learned Government Pleader for the respondent. 5. Section 72 of the Kerala Revenue Recovery Act, as it stood at the relevant time, barred the jurisdiction of Civil Courts except in cases where fraud was alleged. The Section as it stood at the relevant time reads thus:- “72. General bar to jurisdiction of civil courts save where fraud alleged:- Except as otherwise expressly provided in this Act, every question arising between the Collector or the authorised officer and the defaulter or his representative or any other person claiming any right through the defaulter, relating to the execution, discharge or satisfaction of a written demand issued under this Act or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such demand, shall be determined not by suit, but by order of– (i) the Board of Revenue, where the Collector is a party to the question; (ii) the Collector, in other cases: Provided that a suit may be brought in a civil court in respect of any such question on the ground of fraud.” An issue with regard to the maintainability of the suit was raised by the trial court, which reads thus, “2. Whether the suit is not maintainable under Section 72 of the R.R Act?” The trial court noted that the plaintiff has not approached the right forum in terms of the Revenue Recovery Act to raise his contentions, and that the suit is not maintainable under Section 72 of the Act. A reading of the plaint shows that, there is no allegation of fraud. The trial court found that there is no proof of any fraud. Therefore, the suit was not maintainable. 6. Section 70 of the Revenue Recovery Act provides adequate forum for the plaintiff to have the dispute resolved. Section 70 reads thus:- “70. Payment under protest:- (1) When proceedings are taken under this Act against any person for the recovery of any sum of money due from him, such person may, at any time before the commencement of the sale of any property attached in such proceedings, pay the amount claimed and at the same time delivery a protest signed by himself or by his authorised agent to the officer issuing the demand or conducting the sale, as the case may be, who shall thereon drop further proceeding for the recovery of the money. (2) When the amount is paid under protest under sub-section (1), such amount together with the protest, if received by an officer other than the one who has issued the demand, shall be forwarded to the officer who has issued the demand. The officer issuing the demand shall, if proceedings have been initiated at the instance of any other officer forward the amount and the protest to the Officer at whose instance the proceedings have been initiated. The officer issuing the demand or the officer at whose instance the proceedings have been initiated, as the case may be, shall enquire into the protest and pass appropriate orders. If the protest is accepted, the officer disposing of the protest shall immediately order the refund of the whole or part of the money paid under protest and initiate fresh proceedings for the realisation of the amount, if any due. (3) Subject to the provisions contained in sub-section (4), the person making a payment under protest shall have the right to institute a suit for the refund of the whole or part of the sum paid by him under sub-section (2). (3) Subject to the provisions contained in sub-section (4), the person making a payment under protest shall have the right to institute a suit for the refund of the whole or part of the sum paid by him under sub-section (2). (4) No suit under sub-section (3) shall be instituted if the law under which the amount paid under protest is due provides a remedy, whether by way of appeal, revision or other proceeding, to the person who paid such amount, before exhausting such remedy.” In terms of the Section, the plaintiff can pay under protest the amount claimed, and the concerned authority is required to adjudicate upon the dispute raised. Sub-section 3 of Section 70 saves the right of the plaintiff to challenge such decision before a Civil Court. Therefore, the plaintiff has adequate remedy as provided for under the statute. It is for the plaintiff to adopt such course. 7. It would be sufficient to hold that, if proceedings as provided under Section 70 is resorted to by the plaintiff, then the same shall be considered notwithstanding the lapse of time due to the pendency of the present suit and appeal. In the result, the appeal is dismissed subject to the observation as above.