Allowed

Thomas J @ K.J.Thomas v. the State of Kerala

Kerala HC20 Oct 2016WP(C)/24639/2016

Case brief

AI extract

What is this about?

The High Court of Kerala directed revenue authorities to lift attachment on specific properties and attach another property held by the petitioner. The court applied principles of equity to facilitate recovery, noting no statutory prohibition against shifting attachments when the new property is sufficient.

What did the court decide?

Direction to respondents to lift attachment from properties in Exts.P5 and P6 and attach the property in Ext.P7 within three weeks.

Thomas J @ K.J.Thomas Vs the State of Kerala — Property and Title | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶4

THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938

¶5

WP(C).No. 24639 of 2016 (D)

¶6

PETITIONER(S):

¶7

1. THOMAS J @ K.J.THOMAS AGED 54 YEARS, S/O. OUSEPH JOSEPH, KARAKKADU (H), NEAR GOOD SHEPHERD SCHOOL, THENGANA KARA, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. 2. THRESSIAMMA SEBASTIAN, W/O. SEBASTIAN ANTONY, POOVAKKATTU, CHEERAMCHIRA, CHANGANASSERRY.

¶8

BY ADVS.SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE

¶9

RESPONDENT(S):

¶10

-------------1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE DEPUTY TAHSILDAR, (REVENUE RECOVERY) CHANGANASSERRY, TALUK OFFICE-CHANGANACHERRY, CHANGANASSERY, KOTTAYAM DISTRICT 686 101.

¶11

3. VILLAGE OFFICER-MADAPPALLY, VILLAGE OFFICE, MADAPPALLY,KOTTAYAM DISTRICT 686 546.

¶12

4. THE VILLAGE OFFICER-CHANGANASSERY, VILLAGE OFFICE, CHANGANASSERY, KOTTAYAM 686 101.

¶13

BY SENIOR GOVERNMENT PLEADER SRI T.K.ARAVIND KUMAR BABU

¶14

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

K.V.

¶16

WP(C).No. 24639 of 2016 (D)

¶17

APPENDIX

¶18

PETITIONER(S)' EXHIBITS

¶19

EXHIBIT P1	THE COPY OF THE COMMON JUDGMENT DATED 28/02/2015 IN O.S NO 234/2012,161/2013,247/2012, 256/2012 , 266/2012 AND BEFORE THE SUB COURT, PALA.
EXHIBIT P1(A)	THE COPY OF THE INTERIM ORDERS IN RFA NOS 867/2015,884/2015,891/2015,892/2015 AND 893/2015.
EXHIBIT P2	THE COPY OF THE REVENUE RECOVERY NOTICES ISSUED TO THE 1ST PETITIONER IN THE 5 SUITS MENTIONED IN EXHIBIT P1 JUDGMENT.
EXHIBIT P3	THE COPY OF THE JUDGMENT DATED 19/08/2015 IN WP(C) NO 25391/2015 BEFORE THE HONOURABLE HIGH COURT OF KERALA.
EXHIBIT P4	THE COPY OF THE SALE DEED NO 801/2016 DATED 30-04-2016 OF SRO THENGANA.
EXHIBIT P5	THE COPY OF THE SALE DEED NO 500/2011 DATED 11-02-2011 OF THENGANA SRO.
EXHIBIT P6	THE COPY OF THE SALE DEED NO 1094/2015 DATED 09-06- 2015 OF THENGANA SRO.
EXHIBIT P7	THE COPY OF THE SALE DEED NO 2910 DATED 28-11-2011 OF CHANGANASSERY SRO.
EXHIBIT P7(A)	THE COPY OF THE TAX RECEIPT DATED 2-5-2015 ISSUED FROM THE VILLAGE OFFICE CHANGANASSERY.
EXHIBIT P8	THE COPY OF THE TRUE EXTRACT OF THE SCHEDULE SHOWING THE FAIR VALUE OF THE P;LOT IN BLOCK NO 133 AND
	RESURVEY NO 4 OF CHANGANASSRY VILLAGE (SL NO 4860).

¶20

RESPONDENT(S)' EXHIBITS NIL

/TRUE COPY/

P.A.TO JUDGE

K.V.

C.R.

SHAJI P. CHALY, J.

¶26

W.P.(C) No.24639 of 2016

¶27

Dated this the 20th day of October, 2016

¶28

JUDGMENT

¶29

This writ petition is filed by the petitioners seeking to shift the attachment under Ext.P2 revenue recovery notice from the properties covered by Exts.P4 to P6, to another property of the 1^st petitioner covered by Ext.P7 sale deed. Material facts for the disposal of the writ petition are as follows:

¶30

First petitioner, 2^nd defendant in a pauper suit for compensation has suffered Ext.P1 judgment whereby the plaintiff was allowed to realise the plaint amount from the petitioner and his co-defendant. Aggrieved by Ext.P1 judgment, petitioner and the other defendant in the suit have filed Regular First Appeals before this Court, and Ext.P1 judgment stands stayed. However, during the interregnum, Government issued Ext.P2 demand notice, initiating recovery proceedings to recover the court fee amount of Rs.6,14,000/permitted to be recovered as per the judgment and decree

¶31

¶32

W.P.(C) No.24639 of 2016

¶33

under the said civil appeal. As per Ext.P3 judgment in W.P.(C) No.25391 of 2015 dated 19.08.2015, a learned Single Judge of this Court directed that no amount other than the court fee shall be recovered from the 1^st petitioner. The revenue authorities have attached the properties covered by Exts.P5 and P6 documents. But the 1^st petitioner by virtue of Ext.P4 have sold out a portion of the property covered by Ext.P5 to the husband of the 2^nd petitioner. Now, sighting the existence of attachment, the mutation of the said property is not being done by the revenue authorities. Similarly, with respect to the property covered by Ext.P6, an agreement is entered into by the 1^st petitioner, to sell it to a third person.

¶34

According to the petitioners, since the subject matter is pending in appeal before this Court, the lifting of the attachment may not be possible and therefore the petitioner seeks a direction to the respondents to shift the attachment to Ext.P7 property held by the petitioner, which is sufficient enough to take care of the court fee. Ext.P8 is the true copy of fair value register, produced to establish that the property covered under Ext.P7 is sufficient enough to meet the requirement. It is in this background, seeking appropriate

¶35

W.P.(C) No.24639 of 2016 3

¶36

direction, this writ petition is filed.

¶37

Second respondent has filed a statement in the writ petition, wherein, among other contentions, states that the property covered by Ext.P7 document admeasuring 10.65 Ares situated in Survey No.4/3-2 with Thandaper No.18588 of Changanacherry Village is sufficient enough to recover the amount of Rs.6,14,000/- claimed by the requisitioning authority towards recovery of court fee from the 1^st petitioner.

¶38

Heard learned counsel for the petitioners and the learned Government Pleader, and perused the documents on record and the pleadings put forth.

¶39

The sole question arises in this writ petition is whether a shifting of attachment is possible in order to meet the requirement sought for by the petitioner with respect to the already attached properties covered by Exts.P4 to P6 documents under the Kerala Revenue Recovery Act, 1968. True, there is no provision under the Kerala Revenue Recovery

¶40

Act enabling the revenue recovery authorities to shift the attachment already effected. But, at the same time, there is also no prohibition created under the said statute to shift the attachment from one property to another to cater the needs of

¶41

W.P.(C) No.24639 of 2016 4

¶42

a defaulter under the Act. The 2^nd respondent has filed a statement which shows that 1^st petitioner is holding several extents of properties in various Villages, altogether having a value of more than Rs.2.5 Crores. It is also specifically enumerated in the said statement that the property covered by Ext.P7 title deed is sufficient enough to recover the amount due from the 1^st petitioner.

¶43

Now the question is, whether this Court will be justified to grant the relief sought for by the petitioner? As I pointed out earlier, there is no prohibition under the Act, but there is no enabling circumstance also. In my considered opinion, this is a right occasion where equity can be extended. Equity means, “right as founded on the laws of nature”. Provisions of law may not be complete in all respects, nor they are perfect. Framers of law may not envision every situation, during the course of legislation. But when the law is put into practice, lot of eventualities arise and it is thereupon that, amendment is carried out. Therefore, even if there is no sufficient provision to take care of a particular situation, if no inconvenience is caused to anyone, equity can be extended to the needy. Which thus means, merely because a provision of

¶44

W.P.(C) No.24639 of 2016 5

¶45

law is absent to meet a contingency, Constitutional courts, need not be mere onlookers or mute spectators. In my considered opinion, that is the right time to step in and extend the principles of equity. However, while doing so, sufficient precaution shall be taken by assimilating all attendant situations to avert any possibility of causing serious prejudice, against whom equity is applied. Taking note of the respective submissions made across the Bar and since it is clear that there are no other encumbrances in respect of the property covered under Ext.P7 title deed, and the property is sufficient enough to meet the requirements of the revenue authorities, I am of the considered opinion that the request made by the petitioner can be granted.

¶46

Therefore, there will be a direction to the respondents to lift the attachment against Exts.P5 and P6 properties and attach the property covered by Ext.P7 document admeasuring 10.65 Ares, situated in Survey no.4/32 of Changanacherry Village. The proceedings so directed shall be completed by the respondents within three weeks from the date of receipt of a copy of this judgment, and issue necessary orders accordingly to the 1^st petitioner.

¶47

¶48

W.P.(C) No.24639 of 2016

¶49

The writ petition is disposed of accordingly.

¶50

Sd/- SHAJI P. CHALY JUDGE

¶51

//true copy//

¶52

P.S. to Judge

¶53

St/21.10.2016

Thomas J @ K.J.Thomas v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Thomas J @ K.J.Thomas v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Poonchola Lakshmi Vs the Village Officer, Ndiyirippu Village

Aboobacker T.K Vs the Forest Range Officer

K.K.Kalyani Vs Executive Engineer, Vaikom

Komalavalli Vs State of Kerala

Kunjumon K.V. Vs Cochin International Airport Ltd.

Kerala State Electricty Board Vs M.P. Musthafa