Quashed

R.Jayasankar v. the District Collector

Kerala HC16 Mar 2022WP(C)/4913/2012

Case brief

AI extract

What is this about?

This writ petition challenged the legality of notices under the Kerala Revenue Recovery Act regarding the petitioner's arrest and detention for default. The High Court, relying on prior precedents, quashed the orders for lack of objective assessment and material support, remanding the matter for reconsideration with a hearing.

What did the court decide?

The impugned Ext.P1 and P3 are set aside, and the 1st respondent is directed to reconsider the matter, giving an opportunity of hearing within six weeks.

R.Jayasankar Vs the District Collector — Cheque Dishonour | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA,

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WP(C) NO. 4913 OF 2012

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PETITIONER/S:

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R.JAYASANKAR, 2256A, ARJUNA,
VIDYA NAGAR COCHIN -682020

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BY ADV SRI.M.P.SREEKRISHNAN

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RESPONDENT/S:

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1 THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION BUILDING, KAKKANAD 682030

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2KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION
LTD, KOWDIYAR, THIRUVANANTHAPURAM 695001
BY ADVS.
SMT.MARIAM MATHAI
SRI.M.PATHROSE MATTHAI SR.
SRI.SAJI VARGHESE
SRI.P.U.SHAILAJAN, SC, KSIDC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W.P.(C). No. 4913 of 2012

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P.V.KUNHIKRISHNAN, J.

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W.P.(C) No. 4913 of 2012

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Dated this the 16^th day of March, 2022

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JUDGMENT

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The above writ petition is filed with following prayers:

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“i. Issue a writ of certiorari quashing Ext.P1 and P3 as the same is illegal and against the provisions of the Kerala Revenue Recovery Act.

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ii. Declare that the petitioner is not liable to be proceeded against under Section 65 of the Revenue Recovery Act in the instant case.

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iii. Issue any other writ direction or order which may found just and necessary in the facts and circumstances of the case.” (Sic)

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The main contention raised by the petitioner is that

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Exts.P1 and P3 are not an order in tune with Section 65 of the

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Kerala Revenue Recovery Act.

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Heard the learned counsel for the petitioner and the

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learned Government Pleader. I also heard the learned Standing Counsel for the 2^nd respondent.

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I perused Exts.P1 and P3 orders and the decision

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W.P.(C). No. 4913 of 2012

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relied on by the learned counsel for the petitioner in Ghee Dee Fankula v. District Collector, Ernakulam [1993 KHC 541] .

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It will be better to extract the relevant paragraphs of the above decision hereunder:

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“8. On a perusal of Ext.P-11, it is seen that the District Collector passed the order on the finding that defaulter is wilfully withholding the payment of arrears due to Government and the satisfaction that the arrears of revenue due from the defaulter could be realised from him only by a civil arrest. At an earlier occasion also a similar arrest procedure has been adopted and even an amount of Rs.5,000 could not be recovered from him. The fact that when stay of arrest was given by this court on payment of Rs. 5,000 and that amount could not be paid also, is indication that the amount cannot be recovered even if the procedure contemplated under S.65 is adopted.

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9. In the decision reported in Bijilo Joseph v. District Collector, Kottayam 1974 KLT SN 35 this court held that "the, arrest and detention of a defaulter under S.65 should not be a matter of course, that before directing such arrest the authority concerned should anxiously consider the materials available to it to come to a decision, that prior to reaching that decision a notice should be given to the defaulter drawing his attention to the materials available so as to afford him an opportunity for effective reply and that it is only after a proper disposal is made and communicated that any

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W.P.(C). No. 4913 of 2012

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arrest should follow." It was further held that -

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"if the case is that by disposing of the property, the amount due or a substantial portion thereof could be paid off then again materials available must show that the properties are such as are marketable and sufficient for such discharge. If it is any other source of funds available to the defaulter that is relied on specific reference must be made to it, so that the Court may be in a position to determine the relevance of such material to the finding."

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The notices - Exts. P-3 and P-4 indicated that the petitioner, property which he owned jointly and possessed along with had his brothers and that was sold on 26th December 1980. The further contention is that the defaulter was running a benami shop in the name and style "Lime Coke Traders" very close to his house. But the details relating to this has not been furnished. Mere averments are not sufficient.

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10. xxxxx xxxxx xxxxx

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11. As observed in the unreported decision in O.P. No. 4421/1975 by a learned Single Judge:

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"Arrest and detention of a defaulter in civil prison under S.65 of the Act are something which should be resorted to only if there is sufficient material to prove beyond a shadow of doubt that the ingredients required to be satisfied by S.65 of the Act are well established."

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On going through Ext. P-11, I am satisfied that adequate consideration has not been given in this regard by the

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W.P.(C). No. 4913 of 2012

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authority, which ordered arrest and detention of the petitioner. It is not established that satisfaction of the District Collector was made after an objective consideration and assessments of the facts. Mere averment that he satisfied himself is not sufficient. It should be based on objective assessment of facts which should be revealed from records. The facts discussed in Ext. P-11 will not Indicate that such objective assessment has been made by the authority in this case. Large amount is sought to be recovered. Ext. P-1 is the order dated 18th June 1976. At an earlier occasion, recovery proceedings were taken even under S.65. At that time, even Rs. 5,000 could not be recovered by arrest and detention. The proceeding under S.65 was once again taken to recover the amount due under Ext. P-1 dated 18th June 1976. That is on 26th November 1991 after a period of 15 years.”

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After going through Exts.P1 and P3, according to

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me, these orders are not in tune with the principle laid down by this Court in the above judgment. Therefore, without making any observation on merit, these orders can be set aside and the matter can be sent back to the District Collector for reconsideration. The District Collector will give an opportunity of hearing to the petitioner and the 2^nd respondent before passing orders. All the contentions raised by the petitioner and

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W.P.(C). No. 4913 of 2012

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the respondents in this writ petition are left open.

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Therefore, this writ petition is disposed of in the following

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manner:

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Exts.P1 and P3 are set aside.

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The 1^st respondent is directed to reconsider the matter, in accordance to law, after giving an opportunity of hearing to the petitioner and the 2^nd respondent, as expeditiously as possible, at any rate, within six weeks from the date of receipt of a copy of this judgment.

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All the contentions raised by the petitioner and the respondents in this writ petition are left open.

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sd/-

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P.V.KUNHIKRISHNAN JUDGE

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das

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W.P.(C). No. 4913 of 2012

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APPENDIX OF WP(C) 4913/2012

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PETITIONER EXHIBITS
Exhibit P1TRUE COPY OF THE NOTICE DATED 3.2.2012
UNDER SECTION 65 OF THE REVENUE
RECOVERY ACT
Exhibit P2TRUE COPY OF THE REPRESENTATION DATED
11.2.2012 ISSUED BY THE 1ST RESPONDENT
Exhibit P3TRUE COPY OF THE NOTICE DATED
17.2.2012 BY THE 1ST RESPONDENT
Exhibit P4TRUE COPY OF THE JUDGMENT DATED
22.6.2011 IN WP(C) NO.11195/2011 OF
THIS HON’BLE COURT

R.Jayasankar v. the District Collector

Case brief

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R.Jayasankar v. the District Collector

Case brief

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