Remanded

T.K.Unnikrishnan Pillai v. the Secretary, Kerala Khadi & Village

Kerala HC26 Nov 2021WP(C)/7726/2010

Case brief

AI extract

What is this about?

The Court disposed of two connected writ petitions challenging revenue recovery proceedings initiated by the Khadi Board. The Court held that lower authorities ignored prior directions to consider the defense of limitation. It set aside the impugned orders and remanded the matter to the Commissioner of Land Revenue to decide the limitation question afresh after giving a hearing.

What did the court decide?

Ext.P13 order is set aside; the 4th respondent (Commissioner of Land Revenue) is directed to reconsider the matter afresh within one month after giving the petitioner an opportunity of hearing.

T.K.Unnikrishnan Pillai Vs the Secretary, Kerala Khadi… — Banking and Recovery | Kerala HC (2021)

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WP(C) NO. 7726/10 & 22427/13

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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 P.V.KUNHIKRISHNAN

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FRIDAY, THE 26^TH DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943

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WP(C) NO. 7726 OF 2010

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PETITIONER/S:

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T.K.UNNIKRISHNAN PILLAI

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SECRETARY, VILLAGE INDUSTRIES DEVELOPMENT, CENTRE, GANDHAJI TILES AND POTTERIES REG.NO., K.149, ARUMANNOOR P.O., AYARKUNNAM,, KOTTAYAM DISTRICT.

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BY ADV SRI.B.KRISHNA MANI

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RESPONDENT/S:

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1 THE SECRETARY, KERALA KHADI & VILLAGE KERALA KHADI AND VILLAGE INDUSTRIES,, THIRUVANANTHAPURAM.

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2 THE TAHASILDAR REVENUE RECOVERY, KOTTAYAM. 3 THE DISTRICT COLLECTOR KOTTAYAM.

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BY ADV SRI.TOM K.THOMAS, SC KERALA KHADI & VILLAGE INDUSTRIES B

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OTHER PRESENT:

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SRI.N.RAJAGOPALAN NAIR, SC, SMT.DEEPA NARAYANAN, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2021, ALONG WITH WP(C).22427/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 7726/10 & 22427/13

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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 P.V.KUNHIKRISHNAN

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FRIDAY, THE 26^TH DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943

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WP(C) NO. 22427 OF 2013

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PETITIONER/S:

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T.K.UNNIKRISHNA PILLAI

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SECRETARY, VILLAGE INDUSTRIES DEVELOPMENT CENTRE, GANDHAJI TILES AND POTTERIES REG.NO.K.149, ARUMANNOOR P.O, AYARKUNNAM, KOTTAYAM DISTRICT.

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BY ADV SRI.B.KRISHNA MANI

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RESPONDENT/S:

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1 THE SECRETARY KERALA KHADI & VILLAGE INDUSTRIES THIRUVANANTHAPURAM 695 001.

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2 THE TAHSILDAR REVENUE RECOVERY, KOTTAYAM 686 001.

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3 THE DISTRICT COLLECTOR KOTTAYAM 686 001.

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4 THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM 695 035.

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5 C.D.LUKOSE AGED 65 YEARS S/O DANIEL, CHAKKUPURAYIL HOUSE, AYARKUNNAM PO, KOTTAYAM.

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6 JOSEPH ABRAHAM THADATHIL HOUSE, AYARKUNNAM, KOTTAYAM. ADDL.R5 AND R6 ARE IMPLEADED AS PER ORDER DTD. 31.10.17 IN IA 16986/17

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BY ADVS. SRI.TOM K.THOMAS, SC KERALA KHADI & VILLAGE INDUSTRIES B GOVERNMENT PLEADER, SMT.DEEPA NARAYANAN SRI.P.M.SEBASTIAN SRI.M.J.THOMAS SRI.N.RAJAGOPALAN NAIR, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2021, ALONG WITH WP(C).7726/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 7726/10 & 22427/13

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P.V.KUNHIKRISHNAN, J

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W.P.(C.) Nos. 7726 of 2010 and 22427 of 2013 --------------------------------------------------------Dated this the 26^th day of November, 2021

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JUDGMENT

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These two writ petitions are connected and therefore, I

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am disposing of these two writ petitions by a common judgment.

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W.P.(C.) No.22427/2013 is the subsequent writ petition and therefore, I will narrate the facts in that writ petition. The petitioner was the Secretary of Gandhiji Tiles and Potteries which is a registered society under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act. The Board of Directors of the society in question consists of 13 directors out of whom 3 are no more. The Kerala Khadi and Village Industries Board sanctioned certain amount to the society during the year 1980 to 1986. It is submitted that the unit went into unforeseen difficulties.

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WP(C) NO. 7726/10 & 22427/13 4

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Subsequently, the petitioner received a notice from the 1^st respondent as evident by Ext.P1, in which a sum of Rs.8,49,250/- is demanded. Ext.P2 is the reply submitted by the petitioner. Thereafter, the petitioner received Ext.P3 dated 3.12.2004. Subsequently, the petitioner received a notice under the provisions of Revenue Recovery Act as evident by Exts.P4 and P5. According to the petitioner, Exts.P1 and P3 to P5 are issued without jurisdiction. It is also the case of the petitioner that the revenue recovery proceedings cannot be resorted to, to realise time barred debts. The petitioner relies the judgment of the Apex Court in State of Kerala v. V.R.Kalliyanikutty [1999 (2) KLT 146]. According to the petitioner, the property now sought to be sold is highly valuable and the same fetch at least 1 lakh per cent. Moreover, it is also stated that the machineries therein will fetch at least a sum of Rs.5 lakhs. According to the petitioner, the total value will be about Rs.1 crore 47 lakhs. It is the specific case of the petitioner that the respondents have no jurisdiction to sell the entire property for the realisation of amount mentioned in Exts. P4 and P5. Aggrieved by this, the

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WP(C) NO. 7726/10 & 22427/13 5

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petitioner filed W.P.(C.) No. 38095/2007. This Court disposed

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the above case as per Ext.P6 judgment allowing the petitioner to file a revision before the District Collector. This Court also observed in Ext.P6 judgment that the petitioner can raise the question of limitation also in the revision. The petitioner submitted Ext.P7 revision before the District Collector, in which the question of limitation is also raised. The 3^rd respondent passed Ext.P8 order. In Ext.P8 order, it is mentioned that one Jacob Kuriakose, a member of the society in question had approached the Government for a one time settlement in the matter. It is also mentioned that based on the proceedings in the above application, further revenue recovery proceedings will be taken. It is the case of the petitioner that the question of limitation has not been answered by the District Collector despite Ext.P6 judgment. Subsequently, the petitioner received Ext.P9 communication from the 1^st respondent. In Ext.P9, an amount of Rs.17,72,581/- is claimed as a one time settlement scheme. The petitioner also received Ext.P10, another communication on 21.11.2009, in which it it stated that a sum of

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WP(C) NO. 7726/10 & 22427/13 6

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Rs.17,87,928/- is the amount due. The petitioner also received Ext.P11 from the 2^nd respondent. Ext.P11 proceeds on the basis that an auction is going to be conducted on 12.3.2010. In that stage, the petitioner filed W.P.(C.) No. 7726/2010 with following prayers :

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(i) “Call for the records leading to Ext.P11 and quash Exts.P1, P3 to P5 and P8 to P11 by a writ of certiorari or any other writ, order or direction.

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(ii) Issue a writ of mandamus or any other writ, order or direction directing the respondents not to proceed ahead with Revenue Recovery Proceedings in any manner.

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(iii) Declare that the entire recovery proceedings are illegal, unjust, unconstitutional and that the same are never be enforced in respect of the time barred debt. (iv) Issue a writ of mandamus or any other writ, order or direction directing the respondents to quantify the amounts if any due and also determined the quantum of property that is required to meet the claim.

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(v) Stay all further proceedings pursuant to Ext.P11, until the disposal of this writ petition.

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(vi) Award costs and (vii) Any other reliefs this Hon'ble Court deems fit.”

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Subsequently, the petitioner filed a revision before

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the Land Revenue Commissioner. As per Ext.P13 order, the Land Revenue Commissioner rejected the claim of the petitioner. Hence, the petitioner filed the 2^nd writ petition as W.P.(C.) No. 22427/2013 in which the order passed by the Land Revenue Commissioner is also challenged. It will be better to extract the prayers in W.P.(C.) No. 22427/2013 :

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WP(C) NO. 7726/10 & 22427/13

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(i) “Call for the records leading to Ext.P13 and quash Exts.P1, P3 to P5 and P8 to P13 by a writ of certiorari or any other writ, order or direction. (ii) Issue a writ of mandamus or any other writ, order or direction directing the respondents not to proceed ahead with Revenue Recovery Proceedings in any manner. (iii) Declare that the entire recovery proceedings are illegal, unjust, unconstitutional and that the same are never be enforced in respect of the time barred debt. (iv) Issue a writ of mandamus or any other writ, order or direction directing the respondents to quantify the amounts if any due and also determined the quantum of property that is required to meet the claim and further direct the respondents not to proceed ahead in any manner to enforce a time barred debt.

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(v) Stay all further proceedings pursuant to Ext.P13, until the disposal of this writ petition. (vi) Award costs and (vii) Any other reliefs this Hon'ble Court deems fit.”

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Heard the learned counsel for the petitioner, the learned Government Pleader. I also heard the learned Standing Counsel for the Khadi Board.

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The learned counsel for the petitioner reiterated his contentions in the writ petition. The counsel for the petitioner takes me through Ext.P6 judgment of this Court in W.P.(C.) No.22427/2013 and submitted that this Court allowed the petitioner to raise the question of limitation before the District Collector in that judgment. The District Collector ignoring the same passed Ext.P8 order in which that point is not even considered. The counsel submitted that even in Ext.P13 order,

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WP(C) NO. 7726/10 & 22427/13 8

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the question of limitation is not considered. The short point raised by the counsel for the petitioner is that it is a time barred debt and in the light of the Apex Court judgment in Kalliyanikutty's case (supra) the respondents cannot claim the amount. On the other hand, the Government Pleader takes me through the orders passed by the authority concerned. The Government Pleader submitted that Ext.P1 is dated 13.7.2004. The petitioner filed a reply to the same on 14.10.2004. His reply was rejected as per Ext.P3 on 3.12.2004. Thereafter, the revenue recovery proceedings was issued on 16.3.2006 as evident by Exts.P3 and P4. As per Sec. 49 of the Revenue Recovery Act, notice was issued on 12.3.2007. Subsequently, the requisition by the requisitioning authority for the revenue recovery proceedings was on 17.2.2006, which is clear from Ext.P8. Therefore, the debt is not time barred. The Government Pleader also submitted that simply because the authority has not considered these legal questions, this Court need not remit the matter again to the authority concerned. The counsel for the Khadi Board also supported the contention of the Government Pleader.

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WP(C) NO. 7726/10 & 22427/13

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6. I considered the contentions of the petitioner and

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the respondents. It will be better to extract Ext.P6 judgment.

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“The petitioner is the Secretary of one Gandhiji Tiles and Potteries which had availed a loan facility from the Kerala Khadi and Village Industries Board. Paragraph 4 of the writ petition gives the details of the amount which was sanctioned and disbursed to the petitioner, according to the learned counsel. Apparently, only a portion of the amount was repaid. The loan was sanctioned on the strength of mortgage of a property having an extent of one acre and 10 cents. In 2004 Ext.P1 revenue recovery notice was issued to which the petitioner submitted Ext.P2 reply. But thereafter Ext.P3 notice was issued by the first respondent requiring the petitioner to make payment within 15 days. This was followed by Ext.P4 notice under the provisions of the Revenue Recovery Act. Ext.P5 is a notice which proposes the sale of the property under section 49(2) of the Revenue Recovery Act. The writ petition has been filed challenging Exts.P1 and P3 to P5. Though there is no dispute that amounts are to be repaid to the Kerala Khadi and Village Industries, the contention is that it is a time barred debt and the provisions of the Revenue Recovery Act cannot be invoked for the recovery of a time barred debt.

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I heard the learned counsel for the petitioner Sri.B. Krishna Mani, learned Standing Counsel Sri. K.P.Harish and the learned Government Pleader.

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The challenge is against proceedings under the Revenue Recovery Act. Therefore, there is an efficacious alternate remedy available under the Act. In my view, if the petitioner has a contention that the proceedings under the Revenue Recovery Act are barred by limitation, then it is perfectly open to the petitioner to bring this to the notice of the District Collector, who can exercise revisional powers under the Act.

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In the circumstances, the writ petition is disposed of in the following terms:

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WP(C) NO. 7726/10 & 22427/13

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If the petitioner files a revision before the District Collector as against Ext.P1 and P3 to P5 within four weeks from today, the District Collector, Kottayam, shall entertain the same as within time and after issuing notice to the first respondent, pass an order on the same, within a period of three months from the date of receipt of a copy of this judgment. Sale of the property pursuant to Ext.P5 shall be kept in abeyance pending orders by the District Collector in the manner aforementioned. But it is made clear that the attachment effected on the property shall continue to remain in force till orders are passed by the District Collector. Continuance of such attachment shall be subject to the orders to be passed by the District Collector.” [underline supplied]

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From the above judgment, it is clear that this Court allowed the petitioner to raise the question of limitation before the District Collector and the District Collector is directed to consider the same. The District Collector ignored the direction and passed an order as evident by Ext.P8. Thereafter, the matter reached before the Land Revenue Commissioner. The Land Revenue Commissioner also has not considered this point in Ext.P13. This Court gave direction to an authority to pass orders based on a legal contention raised by the petitioner. It is the duty of that authority to consider that point and pass appropriate orders in accordance to law. Whether that authority has got jurisdiction to consider the

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WP(C) NO. 7726/10 & 22427/13 11

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same is not a question. But that authority has to decide the same as directed by this Court and pass appropriate orders.

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Therefore, according to me, the order passed by the authorities is not correct. I make it clear that I have not considered the matter on merit. When there is direction from this Court and that is disobeyed, according to me, the matter has to go back to the authority and the authority concerned has to pass an order as directed by this Court. But after Ext.P8 order, the Land Revenue Commissioner passed Ext.P13 order. Therefore, according to me, Ext.P13 order can be set aside and there can be a direction to the Land Revenue Commissioner to decide the question of limitation as directed by this Court in Ext.P6 judgment. Once again I make it clear that I have not considered this matter on merit and the Land Revenue Commissioner is free to pass appropriate orders, in accordance to law, but after giving an opportunity of hearing to the petitioner. But, the Land Revenue Commissioner should advert the point raised by the petitioner which is directed to be considered by this Court in Ext.P6 judgment.

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Therefore, these writ petitions are disposed in the

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WP(C) NO. 7726/10 & 22427/13

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following manner :

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Ext.P13 order in W.P.(C.) No. 22427/2013 is set aside.

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The 4^th respondent in W.P.(C.) No. 22427/2013 is

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directed to reconsider the matter afresh, after giving an opportunity of hearing to the petitioner.

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1. The 4^th respondent will pass appropriate orders as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.

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1. Based on the decision of the 4^th respondent, the official respondents are free to act in accordance to law forthwith from the stage where the recovery is stopped.

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The amount already deposited as directed by this Court will be adjusted based on the final order to be passed by the 4^th respondent.

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P.V.KUNHIKRISHNAN JUDGE

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SKS

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WP(C) NO. 7726/10 & 22427/13

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APPENDIX OF WP(C) 7726/2010

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF THE NOTICE DATED 30.07.2004 FROM THE 1ST RESPONDENT.
Exhibit P2	TRUE COPY OF THE REPLY DATED 14.10.2004.
Exhibit P3	TRUE COPY OF THE COMMUNICATION DATED 03.12.2004 FROM THE 1ST RESPONDENT.
Exhibit P4	TRUE COPY OF THE NOTICE DATED 23.05.2006.
Exhibit P5	TRUE COPY OF THE NOTICE DATED 22.03.2007.
Exhibit P6	TRUE COPY OF THE JUDGMENT AND I.A. ORDER DATED 27.08.2008 AND 01.01.2008 IN W.P. (C) NO.38095/2007 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
Exhibit P7	TRUE COPY OF THE RELEVANT PORTION OF THE REVISION FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR DATED 03.09.2008.
Exhibit P8	TRUE COPY OF THE ORDER DATED 01.07.2009 ISSUED BY THE 3RD RESPONDENT.
Exhibit P9	TRUE COPY OF THE COMMUNICATION DATED 08.10.2009 FROM THE 1ST RESPONDENT.
Exhibit P10	TRUE COPY OF THE COMMUNICATION DATED 21.11.2009 FROM THE 1ST RESPONDENT.
Exhibit P11	TRUE COPY OF THE NOTICE DATED 16.02.2010 FROM THE 2ND RESPONDENT.
EXT.P12	TRUE COPY OF THE NOTICE OF SALE OF IMMOVABLE PROPERTY DATED 1.3.12

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RESPONDENT'S EXHIBITS :

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WP(C) NO. 7726/10 & 22427/13

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EXT.R1(A)	COPY OF THE DISBURSEMENT AND REPAYMENT REPORT
EXT.R1(B)	A TRUE COPY OF THE MEMORANDUM DATED 5.10.1993 SUBMITTED BY THE PETITIONER ALONG WITH THE CHAIRMAN OF THE LOANEE'
EXT.R1(C)	TRUE COPY FO THE FORM 24 ISSUED UNDER SEC.69(2) OF REVENUE RECOVERY ACT TO RECOVER THE AMOUNT DUE FROM THE PETITIONER.
EXT.R1(D)	TRUE COPY OF THE JUDGMENT DATED 9.6.1993 IN WA NO.656 OF 1993 OF THIS HON'BLE COURT

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WP(C) NO. 7726/10 & 22427/13

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APPENDIX OF WP(C) 22427/2013

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PETITIONER EXHIBITS

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P1:- TRUE COPY OF THE NOTICE DTD 30/7/2004 FROM THE IST RESPONDENT

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P2:-TRUE COPY OF THE REPLY DTD 14/10/2004

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P3:-TRUE COPY OF THE COMMUNICATION DTD 3/12/2004 FROM THE IST RESPONDENT

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P4:-TRUE COPY OF THE NOTICE DTD 23/5/2006

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P5:-TRUE COPY OF THE NOTICE DTD 22/3/2007

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P6:-TRUE COPY OF THE JUDGMENT AND IA ORDER DTD 27/8/2008 AND 1/1/2008 IN WPC NO 38095/2007 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM

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P7:-TRUE COPY OF THE RELEVANT PORTION OF THE REVISION FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR DTD 3/9/2008

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P8:-TRUE COPY OF THE ORDER DTD 1/7/2009 ISSUED BY THE 3RD RESPONDENT

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P9:-TRUE COPY OF THE COMMUNICATION DTD 8/10/2009 FROM THE IST RESPONDENT

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P10:-TRUE COPY OF THE COMMUNICATION DTD 21/11/2009 FROM THE IST RESPONDENT

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P11:-TRUE COPY OF THE NOTICE DTD 16/2/2010 FROM THE 2ND RESPONDENT

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P12:-TRUE COPY OF THE COUNTER AFFIDAVIT DTD 17/12/2010 IN WPC NO 7726/2010 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM,

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WP(C) NO. 7726/10 & 22427/13 16 P13:-TRUE COPY OF THE ORDER DTD 27/7/2013 IN RP BEFORE THE COMMISSIONER OF LAND REVENUE

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RESPONDENT'S EXHIBITS : EXT.R1(A) TRUE COPY OF LOAN DISBURSEMENT AND REPAYMENT REPORT EXT.R1(B) TRUE COPY OF LETTER DATED 5.10.1993 EXT.R1(C) TRUE COPY OF THE LETTER NO. 8468/98/D2 DATED 9.10.2009 EXT.R1(D) TRUE COPY LETTER DATED 2.1.2014

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WP(C) NO. 7726/10 & 22427/13 17

T.K.Unnikrishnan Pillai v. the Secretary, Kerala Khadi & Village

Case brief

What is this about?

What did the court decide?

T.K.Unnikrishnan Pillai v. the Secretary, Kerala Khadi & Village

Case brief

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What did the court decide?

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