Dismissed

M.C.George v. Dist. Collector and Others

Kerala HC19 Jan 2016WP(C)/2164/2011

Case brief

AI extract

What is this about?

The court dismissed the writ petition challenging the confirmation of a public sale of the petitioner's property conducted under the Kerala Revenue Recovery Act. The court held that due to the petitioner's failure to pursue statutory remedies within eight years, equitable relief was not warranted despite alleged procedural lapses and reduced tax liability.

What the court decided

AI extract

M.C.George Vs Dist. Collector and Others — GST and Indirect Tax | 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 MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937

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WP(C).No. 2164 of 2011 (U)

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PETITIONER :

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M.C.GEORGE,AGED 59 YEARS, S/O.JOSEPH CHACKO, NOW RESIDING AT MULLENKUZHY HOUSE, AYMONAM P.O., KOTTAYAM.

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BY ADVS.SRI.N.SUBRAMANIAM SRI.S.S.HUSSAIN SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN

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RESPONDENT(S):

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1. DISTRICT COLLECTOR, THIRUVANANTHAPURAM.

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2. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM.

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3. COMMERCIAL TAX OFFICER, IST CIRCLE, THIRUVANANTHAPURAM.

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4. REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM.

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5. TAHSILDAR (RR), THIRUVANANTHAPURAM.

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6. DEPUTY TAHSILDAR (RR), THIRUVANANTHAPURAM.

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7. SMT. ANNAMMA, AGED 58 YEARS,D/O.THRESSIAMMA, MULLENKUZHY HOUSE, GHANDHI NAGAR, MUTTADA P.O., THIRUVANANTHAPURAM-25

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8. SRI.N.RAJENDRAN, AGED 52 YEARS, S/O.NATARAJAN, BOAT HOUSE, CHETTIKUNNU, KUMARAPURAM, THIRUVANANTHAPURAM- 695 015.

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9. SRI.JACOB BENNY, KURIYAKIL VEEDU, SREEKARIYAM P.O., THIRUVANANTHAPURAM-695 017.

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10. SRI.JOSEPH BENNY, HOUSE NO.77, SANTHOSH NAGAR, MUTTADA, PATTOM, THIRUVANANTHAPURAM- 695 004.

2/-

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WP(C).NO.2164/2011

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*11. SRI.JUSTIN GEORGE, AGED 31, S/O.ANNAMMA, MULLENKUZHY HOUSE, GANDHI NAGAR, MUTTADA P.O., THIRUVANANTHAPURAM- 25. (DELETED)

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*R11 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 11/06/2014 IN IA.NO. 7514/2014.

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R1 TO R6 BY GOVERNMENT PLEADER SRI.LIJU V. STEPHEN

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R7 BY ADVS. SRI.S.MOHAMMED AL RAFI

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SRI.S.R.AJITH R8 BY ADV. SRI.LATHEESH SEBASTIAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.2164/2011

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APPENDIX

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PETITIONER'S EXHIBITS AND ANNEXURES:

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P1 COPY OF THE ASSESSMENT ORDER FOR THE YEAR 1999-2000 OF THE ADDITIONAL SALES TAX OFFICER, 1ST CIRCLE, THIRUVANANTHAPURAM DATED 6/7/2001.

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P2 COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2000-01 OF THE ADDL.SALES TAX OFFICER, 1ST CIRCLE, THIRUVANANTHAPURAM DATED 22/11/2001.

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P3 COPY OF THE DEMAND NOTICE IN FORM NO.14B FOR THE YEAR 2000-01 ISSUED BY THE ADDL.SALES TAX OFFICER, 1ST CIRCLE, THIRUVANANTHAPURAM

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P4 COPY OF THE REPRESENTATION DATED 14/12/2001 FILED BY THE PETITIONER BEFORE THE HON'BLE COMMISSIONER OF TAXES, THIRUVANANTHAPURAM

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P5 COPY OF THE REQUISITION FOR RECOVERY OF AMOUNT DATED 26/12/2001 MADE BY THE ADDL.SALES TAX OFFICER, 1ST CIRCLE, THIRUVANANTHAPURAM IN FORM NO.24

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P6 COPY OF THE CERTIFICATE UNDER SECTION 23 (2) (A) OF THE K.G.S.T. ACT DATED 27/12/2001 OF THE ADDL.SALES TAX OFFICER, 1ST CIRCLE, THIRUVANANTHAPURAM.

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P7 COPY OF THE DEMAND NOTICE IN FORM NO.1 DATED 13/3/2002 ISSUED BY THE DEPUTY TAHSILDAR (RR), THIRUVANANTHAPURAM.

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P8 COPY OF THE DEMAND IN FORM NO.10 UNDER SECTION 34 OF THE RR ACT ISSUED BY THE DEPUTY TAHSILDAR (RR), THIRUVANANTHAPURAM

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P9 COPY OF THE ATTACHMENT NOTICE NO.ST/964/02/ST DATED 27/5/2002 OF THE TAHSILDAR (RR), THIRUVANANTHAPURAM.

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P10 COPY OF THE NOTICE NO.S3-964/02/ST DATED 30/10/2002 ISSUED BY THE TAHSILDAR (RR), THIRUVANANTHAPURAM

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P11 COPY OF THE REPRESENTATION DATED 13/11/2002 OF THE PETITIONER BEFORE THE HON'BLE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.

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P12 COPY OF THE NOTICE NO.S4-964/02/ST DATED 4/2/2003 IN FORM NO.16 ISSUED BY TAHSILDAR (RR), THIRUVANANTHAPURAM

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P13 COPY OF THE ORDER OF CONFIRMATION OF SALE ISSUED ON 20/9/2003 BY THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM

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P14 COPY OF THE CERTIFICATE OF SALE NO.D.19963/03/D.DIS DATED 5/1/2004 ISSUED BY THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM

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2/-

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WP(C).NO.2164/2011

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P15 COPY OF THE ORDER NO.STA 676, 684 AND 686/01 DATED 16/6/2008 OF THE DEPUTY COMMISSIONER (APPEALS), THIRUVANANTHAPURAM

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P16 COPY OF THE MODIFIED ORDER DATED 10/10/08 OF THE COMMERCIAL TAX OFFICER, 1ST CIRCLE, THIRUVANANTHAPURAM

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P17 COPY OF THE PETITION DATED 15/12/2010 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.

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ANNEX A COPY OF THE NOTARIZED POWER OF ATTORNEY EXECUTED BY PETITIONER M.C.GEORGE IN FAVOUR OF S.REMANAN., DATED 17/12/2010.

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RESPONDENT'S EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

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A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.2164 of 2011

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............................................................. Dated this the 19^th day of January, 2016

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J U D G M E N T

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The petitioner was the partner of a firm that comprised of three partners, the petitioner, the 7^th respondent and the 8^th respondent. The petitioner had gone abroad, and therefore, was not able to look after the affairs of the partnership firm and he had entrusted the administration of the firm to the 7^th and 8^th respondents. For the assessment years 1999-2000 and 2000-2001 under the Kerala General Sales Tax Act, the partnership firm became liable to the State Government in an amount of Rs.3,71,188/- together with interest and other charges and, consequent to non-payment of the said amount, recovery steps were initiated against the firm under the Kerala Revenue Recovery Act, 1968. Exts.P5 and P6 are the requisition notices issued by the State Government pursuant to which Ext.P8 notice under Section 34 and Ext.P9 attachment notice was served on the 7^th respondent, who was a partner of the firm. Thereafter, by Ext.P10 notice under Section 49 (2) of the Kerala Revenue Recovery Act, the properties

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W.P.(C). No.2164 of 2011

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belonging to the petitioner were posted for sale on 05.12.2002. As there were no bidders in the sale on that date, the sale was adjourned to 12.03.2003. The petitioner on coming to know of the sale proceedings approached the 1^st respondent by Ext.P11 representation dated 13.11.2002 for staying the proceedings. When no action was forthcoming from the 1^st respondent, the petitioner approached this Court through O.P.No.36547 of 2002, challenging the said proceedings. In the said writ petition, an interim order against further proceedings was granted to the petitioner, on condition that, the petitioner paid an amount of Rs.1,00,000/- within 30 days. It is not in dispute that the petitioner did not comply with the said direction and consequently the said writ petition came to be dismissed. Thereafter, pursuant to Ext.P12 notice dated 04.02.2003, the property was sold to the 9^th respondent for an amount of Rs.5,32,000/-. The said sale was subsequently confirmed by the 4^th respondent in favour of the 9^th respondent by Ext.P13 order dated 20.09.2003 and Ext.P14 sale certificate was also issued in favour of the 9^th respondent. It would appear that, thereafter, the 9^th respondent sold the property in question to his brother, who is arrayed as the 10^th respondent herein. In the writ petition, the petitioner makes mention of the

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W.P.(C). No.2164 of 2011

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fact that the demand consequent to the assessment orders for the assessment years 1999-2000 and 2000-2001 came to be substantially reduced in appeal pursuant to Ext.P15 order of the appellate authority and the resultant demand on the petitioner for the said years was only in an amount of Rs.39,908/-. In the writ petition, the petitioner contends that, on account of the substantial reduction in the liability of the petitioner for the assessment years in question, the sale of the property belonging to the petitioner for an amount of Rs.5,32,000/- is wholly illegal for the following reasons namely;

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(1) the sale was conducted for realisation of amounts which were subsequently reduced by the appellate authority in appeal proceedings,

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(2) The property was sold without following the due procedure contemplated under the Kerala Revenue Recovery Act regarding the period of notice to be given to the petitioner prior to the sale of his properties, as also in the manner of obtaining the best price for the property in question,

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(3) The respondents need not have sold the entire property belonging to the petitioner when a sale of only a portion of the property would have sufficed to discharge the liability due to the respondents.

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W.P.(C). No.2164 of 2011

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It is on the above contentions that the petitioner prays for a setting aside of the sale that was confirmed in favour of the 9^th respondent, and for a direction to the respondents to re- convey the property to the petitioner, if need be on the petitioner paying, over and above the liability together with interest due to the respondents, any additional amount by way of compensatory costs.

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I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondents.

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On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that although the learned counsel for the petitioner would vehemently contend that the various provisions of the Revenue Recovery Act, that regulate the procedure to be followed while putting up the properties in the default of sale, had not been complied with, it is a fact that when confronted with proceedings for sale of the property, the petitioner did not take timely steps for protecting his rights against the sale of the property. While the petitioner had approached this Court through O.P.No.36547 of 2002 impugning the proceedings initiated by the respondents for bringing the

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W.P.(C). No.2164 of 2011

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property to sale, pursuant to a default in complying with an interim order of this Court, the said writ petition was dismissed, The petitioner did not pursue the matter any further. It is also relevant to note that although by Ext.P13 order, the sale was confirmed in favour of the 9^th respondent by the 4^th respondent, the petitioner did not avail of any of the remedies provided to him in terms of Sections 52 or 53 of the Kerala Revenue Recovery Act, 1968, for setting aside the sale, inter alia, on the ground of material irregularity or mistake or fraud in the manner or publication or conduct of the sale proceedings. While counsel for the petitioner would rely on the decision reported in Gopalakrishnan Vs. State of Kerala [ILR (2006) 2 Ker.102] for the proposition that, the sale proceedings were vitiated on account of a non-compliance with the requirement of issuing a fresh notice whenever the sale was adjourned beyond the period of 60 days, the decisions in Kandaswami Mudali Vs. K.R.Narasimha Ayyar and Ors. [AIR 1948 Madras 280], Gulsan Bibi and Ors. Vs. Sabaratan Bibi and Ors. [AIR 1966 Calcutta 213] and Mahipati Haldar Vs. Atul Krishna [AIR 1949 Calcutta 212] for the proposition that if the sale is vitiated on account of material irregularity or fraud, then the mere fact

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that the purchaser of the property had acted bonafide was immaterial when considering the validity of the sale transaction and the rights that would accrue to the auction purchaser, I am of the view that, on the facts of the instant case, where the petitioner did not pursue his remedies for almost eight years, the said decisions and legal contentions may not come to the aid of the petitioner in seeking the reliefs sought for in the present writ petition. Accordingly, I dismiss the writ petition in its challenge against the sale proceedings that stood confirmed in favour of the 9^th respondent. No costs.

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A.K.JAYASANKARAN NAMBIAR JUDGE

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mns/19.01.16

M.C.George v. Dist. Collector and Others

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M.C.George v. Dist. Collector and Others

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