Allowed

The Village Officer v. P.A Mohammed Sarcar

Kerala HC24 Sept 2019WA/2357/2016

Case brief

AI extract

What is this about?

Appeal against High Court judgment which quashed revenue recovery proceedings initiated against a contractor due to alleged default in completion of work. Bench held 30 year limitation period applies to government dues allowing recovery.

What did the court decide?

Writ petition before Single Judge in WPC 28575/2013 quashed and judgment set aside.

The Village Officer Vs P.A Mohammed Sarcar — Contract and Commercial Disputes | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE ACTING CHIEF JUSTICE MR.C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941

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WA.No.2357 OF 2016

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AGAINST THE JUDGMENT DATED 05-04-2016 IN WPC 28575/2013 OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS IN W.P (C):

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1 THE VILLAGE OFFICER, PERUMBAVOOR VILLAGE, PERUMBAVOOR- 683 542 , KUNNATHUNADU TALUK.

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2 THE DEPUTY TAHSILDAR (REVENUE RECOVERY) TALUK OFFICE, KUNNATHUNADU, PERUMBAVOOR- 683 542.

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3 THE TAHSILDAR KUNNTHUNADU TALUK, TALUK OFFICE, PERUMBAVOOR, ERNAKULAM- 683 542.

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4 THE DISTRICT COLLECTOR ERNAKULAM, CIVIL STATION, KAKKANADU, KOCHI-30.

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5 THE EXECUTIVE ENGINEER PERIYAR VALLEY IRRIGATION PROJECT, DIVISION NO.II, ALUVA, ERNAKULAM DIST- 683 101.

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6 THE STATE OF KERALA REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.

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BY GOVERNMENT PLEADER

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RESPONDENT/PETITIONER IN THE W.P (C):

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P.A MOHAMMED SARCAR S/O ABDUL KHADER, PANKKARUKUDI HOUSE, CHELAMATTOM NOW RESIDING AT KANJIRAKKADU KARA, RAYONPURAM P.O. PERUMBAVOOR VILLAGE, KUNNAHUNADU TALUK, ERNAKULAM DIST.

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R1 BY ADV. SRI.K.ARJUN VENUGOPAL R1 BY ADV. SRI.P.CHANDRASEKHAR R1 BY ADV. SMT.V.A.HARITHA R1 BY ADV. SMT.MARY RESHMA GEORGE R1 BY ADV. SMT.P.M.MAZNA MANSOOR R1 BY ADV. SRI.C.R.SYAMKUMAR R1 BY ADV. SRI.SOORAJ T.ELENJICKAL R1 BY ADV. SMT.SANDHYA R.NAIR

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OTHER PRESENT:

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SR.GP-SURIN GEORGE IPE

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No.2357/2016

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C.K. ABDUL REHIM, Ag. C.J. & R. NARAYANA PISHARADI, J.

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W.A. No. 2357 OF 2016

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DATED THIS THE 24^th DAY OF SEPTEMBER, 2019

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J U D G M E N T

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Abdul Rehim, Ag. C.J:

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State and its officials, who are the respondents in W.P (C) No.28575/2013, are in appeal against the judgment of the Single Judge dated 05-04-2016.

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The respondent herein is the writ petitioner. The writ petitioner was the contractor of the work, “improvements to the patrol road from Ch: 8 Km to 9.7 Km of Kodanad West Branch Canal”, awarded by the 5^th appellant. Allegedly, the writ petitioner failed to complete the work within the period stipulated and also failed to execute the supplementary agreement for completion of the work within the extended period. Consequently the contract was terminated and the work was re-arranged at the risk and cost of the writ petitioner. The work was completed under the alternate arrangement made. The risk and cost and other liabilities of the writ petitioner was quantified. Since the said amount was not paid, despite repeated

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W.A. No.2357/2016

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demands, recovery steps were initiated by resorting to provisions contained under the Kerala Revenue Recovery Act, 1968. The writ petitioner challenged the demand notice issued under the Revenue Recovery Act by raising various grounds, including the contention that the requirement for execution of supplementary agreement was not legal and proper and also that the revenue recovery proceedings was initiated beyond the period of limitation stipulated and hence it is not sustainable.

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The learned Single Judge by referring to a decision of the Hon'ble Supreme Court in State of Kerala V. Kalliyanikutty (1999 (2) KLT 146) (SC) held that, the revenue recovery steps initiated after a period of 3 years from the date on which the arrears had fallen due, is barred by limitation and cannot be sustained. Therefore the demand and recovery steps were quashed. The appellants are challenging the said decision.

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Learned Government Pleader appearing for the appellants contended that, the question dealt with in Kalliyanikutty's case (supra) is with respect to sustainability of revenue recovery steps for realization of arrears due to those institutions notified under Section 71 of the Revenue Recovery

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W.A. No.2357/2016

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Act. It is pointed out that the proposition laid therein will not apply to Government dues or to public revenue due on land. He had placed reliance on a Full Bench decision of this court in Raveendran Nair V. State of Kerala (2014 (4) KLT 625 (FB) , wherein it is clarified that, because of any notification issued under Section 71 of the Revenue Recovery Act the arrears would not partake character of the arrears of public revenue due on land and cannot be deemed that the arrears to be a public revenue due on land as defined under Section 2 (j) of the Act. Learned Government pleader also placed reliance on a decision of learned Judge of this court in Excise Assistant Commissioner, Kozhikode V. Kaniyankandi Padmanabhan (2011 (1) KLT 1080) wherein it is held that, the period of limitation as against the State is 30 years as stipulated in Article 112 of the Limitation Act, within the period of which revenue recovery proceedings can be initiated for recovering the arrears and that such steps will not be barred by limitation.

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The relevant paragraph in the decision in Kalliyanikutty's case (supra) is extracted hereunder.

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“The Kerala Revenue Recovery Act does not create any new right. It merely provides a process for speedy

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W.A. No.2357/2016 -5-

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recovery of moneys due. Since this Act does not create any new right, the person claiming recovery cannot claim recovery of amounts which are not legally recoverable nor can a defence of limitation available to a debtor in a suit or other legal proceeding be taken away under the provisions of the Kerala Revenue Recovery Act. The provisions in the present case are statutory provisions for coercive recovery of amount due. Therefore, all claims which are legally recoverable and are not time-barred on that date can be recovered under the Kerala Revenue Recovery Act. Under Section 71 of the Kerala Revenue Recovery Act claims which are time barred on the date which a requisition is issued under Section 69 (2) of the said Act are not amounts due under Section 71 and cannot be recovered under the said Act.”

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The dictum laid in the above said decision is that, a debt which is not otherwise recoverable in law cannot be recovered by recourse to the proceedings of the Revenue Recovery Act, merely because Section 71 of the Revenue Recovery Act enabled to utilize the machinery provided under the Revenue Recovery Act for recovery of such arrears. The wordings “all claims which are legally recoverable and are not time barred on that date” would clearly indicate that the restrainment imposed is only with respect to initiating steps for recovery of arrears which remains time barred. But in the case

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at hand the amount is due to the 5^th respondent which is a wing of the State Government. Therefore the arrears partakes characteristics of Government dues. The period of limitation provided under Article 112 of the Limitation Act for initiating any suit for realization of such amount is 30 years. Therefore it it evident that the debt in question with respect to which revenue recovery steps was initiated was remaining legally recoverable and was not remaining time barred as on the date on which steps of revenue recovery was initiated.

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Under the above mentioned circumstances we are of the considered opinion that the reasoning stated in the impugned judgment for quashing the revenue recovery steps are legally not sustainable. Hence the appeal deserves to the allowed. Therefore the impugned judgment in W.P (C) No.28575/2013 is hereby set aside.

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However, the learned counsel for the respondent had raised a contention that the quantification of the arrears was made without providing any opportunity to the respondent. No notice or personal hearing was afforded with respect to the quantification, is the contention. It is noticed that no grounds are seen raised in the writ petition on the above basis; nor there is

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any challenge against the quantification. Therefore we are not inclined to entertain any adjudication on that question in this appeal. The respondent will be at liberty to challenge the quantification in appropriate proceedings, to the extent permissible under law.

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Sd/-

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R. NARAYANA PISHARADI

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JUDGE

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Sd/-

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THE C.K.ABDUL REHIM

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ACTING CHIEF JUSTICE