Partly allowed

State of Kerala v. Shibu Kumar.P.K

Kerala HC21 Jan 2016WA/1107/2009

Case brief

AI extract

What is this about?

This court allowed the writ appeal partially, holding that collection charges under Rules 4 and 5 are recoverable when amounts are paid during revenue recovery proceedings, thereby setting aside the lower court's direction for their refund.

What did the court decide?

The writ appeal is allowed to the extent of setting aside the order directing refund of collection charges payable through revenue recovery.

State of Kerala Vs Shibu Kumar.P.K — Writ and Judicial Review | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937

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WA.No. 1107 of 2009 ( )

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-----------------------(AGAINST THE JUDGMENT IN WP(C).NO. 6605/2009 DATED 30-03-2009) -------------

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APPELLANT(S)/RESPONDENTS 1 TO 4 IN THE WP(C) :

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1. THE STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM.

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2. THE DISTRICT COLLECTOR, KOZHIKODE.

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3. THE SPECIAL DEPUTY TAHSILDAR, (REVENUE RECOVERY), VADAGARA, KOZHIKODE.

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4. THE VILLAGE OFFICER, BALUSSERY VILLAGE, KOZHIKODE DIST.

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BY SR GOVERNMENT PLEADER SRI.P.I.DAVIS

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RESPONDENT(S)/PETITIONER & 5TH RESPONDENT IN THE WP(C) :

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1. SHIBU KUMAR P.K., S/O.LATE RAGHAVAN NAIR, AGED 37 YEARS, PULIYULLAKANDY HOUSE, THURUTHIYAD P.O.,

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BALUSSERY (VIA), PIN -673 612, KOZHIKODE DIST.

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2. THE MANAGER, BANK OF INDIA, CALICUT BRANCH, KOZHIKODE.

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BY ADV. SRI. C.A. JOY

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD

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ON 11-12-2015, THE COURT ON 21-01-2016 DELIVERED THE FOLLOWING:

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sts

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ASHOK BHUSHAN, CJ &

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**A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.1107 of 2009

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Dated this the 21^st day of January 2016

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J U D G M E N T

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Shaffique, J

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This appeal has been remitted back to this Court by the Supreme Court for fresh disposal, in accordance with law, with the following observations.

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“7. In our opinion, in these types of cases, the High Court should have taken up the matters individually and decided whether the State was justified in issuing the demand notice(s) for the purpose of collection charges as well as service charges under Rules 4 and 5 of the Rules.

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8. In view of the above, we set aside the judgment and order passed by the High Court and remand the matters to the High Court for a fresh disposal in accordance with law. We also request the High Court to take the cases individually instead of clubbing all the matters and look into the facts of each case and take a positive decision on the pleadings adduced by both the parties.”

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The writ petition has been filed by the 1^st respondent herein seeking the following directions.

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W.A.No.1107/2009

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“i) call for records leading to issuance of Exhibits P-1 and P-2 and issue a writ of certiorari to quash Exhibits P-1 & P-2 Notices.

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ii) issue a writ of mandamus or any other appropriate writ or order, directing the respondents 2 and 5 to consider and pass appropriate orders on Ext.P-3 representation.

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iii) declare that the 5^th respondent have no authority to make requisition to Collector, to initiate Revenue Recovery proceedings for arrears of loan, which will not come under the purview of Revenue Recovery.

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Or in the alternative

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direct the 5^th respondent to give sufficient time and installment facility to the petitioner to pay of the actual due amount, after considering Ext.P-3.

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And

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iv) issue such other writ, order or direction, which this Hon'ble Court may deem fit and proper on the facts and circumstances of this case and in the interest of justice.”

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The averments in the writ petition disclose that the petitioner availed a loan from Bank of India. Revenue recovery proceedings were initiated against him. Ext.P2 dated 14/10/2009 is the notice issued under Section 7 of the Revenue Recovery Act (hereinafter referred to as 'the Act') demanding an amount of

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W.A.No.1107/2009

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Rs.2,45,212/- with interest @ 11% and collection charges of 5%. Petitioner submitted a representation to the bank requesting for statement of account. According to him, he was not liable to pay any of the amount as shown in Ext.P2 alleging that the instalments were not properly remitted. In fact, no other challenge had been made by the writ petitioner.

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Learned Single Judge, however, observed that the petitioner should be given instalment facility. The first instalment should be paid on or before 25/04/2009 and the balance in succeeding months. When it was pointed out that collection charges have been recovered from the petitioner, direction was issued to give back the collection charges.

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It is contended by the appellant that if the amount is recovered by revenue recovery proceedings, collection charges can be recovered and the learned Single Judge was not justified in directing refund of collection charges.

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It is clear from various judgments of this Court especially Kadeeja Beevi v. Kerala Financial Corporation [1985 KLT 741] , Village Industries Development Centre v. Kerala Khadhi and Village Industries Board [1996 (2) KLJ 253] and Bhaskaran v. Sub Registrar [2005(3)

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W.A.No.1107/2009

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KLT 150] that collection charges can be recovered only if the amount is recovered by revenue recovery proceedings.

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In the case on hand, this Court had only given instalment facility to the petitioner. Since the payments were made during revenue recovery proceedings, necessarily he will be under obligation to pay collection charges as well. Hence the learned Single Judge was not justified in directing refund of collection charges. When the amount due is recovered through

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revenue recovery proceedings, it is open for the revenue authorities to collect collection charges.

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In the said circumstances, we set aside that part of the judgment which directs that collection charges shall not be recovered from the petitioner. This writ appeal is allowed to the above extent.

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(sd/-)

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(ASHOK BHUSHAN, CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE)

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True Copy PA to Judge

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jsr

State of Kerala v. Shibu Kumar.P.K

Case brief

What is this about?

What did the court decide?

State of Kerala v. Shibu Kumar.P.K

Case brief

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