Allowed

C.S.Varkey v. the District Collector

Kerala HC23 Feb 2023WP(C)/29817/2012

Case brief

AI extract

What is this about?

The High Court of Kerala held that revenue recovery proceedings against the petitioner for Motor Transport Workers Welfare Fund contributions were barred by limitation. The court ruled that the original proceedings collapsed when the final determination order was set aside by the Government, and no fresh recovery proceedings or requisitions were initiated thereafter.

What did the court decide?

The revenue recovery proceedings were declared illegal and barred by limitation; the petitioner is directed to accept the land tax.

C.S.Varkey Vs the District Collector — Property and Title | Kerala HC (2023)

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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 MURALI PURUSHOTHAMAN

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THURSDAY, THE 23RD DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944
WP(C) NO. 29817 OF 2012

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PETITIONER:

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C.S.VARKEY AGED 65 YEARS CHERIYANITHOTTATHIL, CHELAKOMBU P.O., KARUKACHAL, KOTTAYAM.

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BY ADVS.
SRI.SABU S.KALLARAMOOLA
SRI.S.NIDHEESH

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR KOTTAYAM – 686 002.

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2 THE TAHSILDAR

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CHANGANASSERY, PIN – 686 101.

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3 THE VILLAGE OFFICER NEDUMKUNNAM, KOTTAYAM, PIN – 686 542.

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4 THE DISTRICT EXECUTIVE OFFICER KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, DISTRICT OFFICE, KOTTAYAM – 686 002.

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BY ADVS.
SR.GOVERNMENT PLEADER SRI.C.N.PRABHAKARAN
SRI.K.S.MANU, SC.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.29817 OF 2012

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 “C.R”

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JUDGMENT

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The petitioner was the owner of a stage carriage bus bearing Registration No. KEK 6397. In respect of the contributions due under the Kerala Motor Transport Workers Welfare Fund, a final determination order dated 04.08.1995 for the period 1992-93 for Rs.8,342/- was served on the petitioner. Later, the District Executive Officer (DEO) of the Kerala Motor Transport Workers Welfare Fund Board (hereinafter referred to as 'Board' for brevity) issued a requisition dated 09.11.1995 in Form 24 under Section 69 (2) of the Kerala Revenue Recovery Act, 1968 (hereinafter referred to as the 'RR Act') to the District Collector for recovery of the said dues. Pursuant thereto, the District Collector issued a demand notice dated 08.03.1996 under Section 7 of the RR Act.

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For the periods 1993-94 and 1994-95, the Board issued Ext. P1 final determination order dated 31.01.1996 for an amount of Rs.19,020/- which was followed by a requisition letter of the DEO of the Board dated 29.03.1996 and demand notice of the District Collector dated 12.07.1996 under Section 7 of the RR Act.

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The petitioner challenged the final

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determination orders referred above and the Government, by Ext.P2 order dated 01.04.1998, set aside the final determination orders with observation that the case requires fresh determination and directed the 4^th respondent, the DEO to re-assess the welfare fund contribution.

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Pursuant to Ext.P2 order, the DEO re-assessed the welfare fund contribution in respect of the petitioner and issued revised final determination order dated 31.01.1999 for Rs. 13,923/- with interest.

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Pursuant to the re-assessed final

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determination order dated 31.01.1999, the DEO submitted a letter dated 30.07.1999 to the District Collector requesting to realise the re-assessed contribution of Rs. 13,923/- with interest as per 'R.R.C No.719/92-93 dated 09.11.1995 and R.R.C No.719/93-95 dated 29.03.1996'.

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6.In the meantime, the petitioner preferred an appeal against Ext.P2 re-assessed final determination order and the Government, though initially granted stay of the proceedings, finally dismissed the appeal as time barred, by Ext. P3. The petitioner challenged

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Ext. P3 before this Court and the matter was relegated to the Government and the Government passed G.O. (Rt) No. 3079/2000/LBR dated 24.08.2000 refusing to interfere with the re-assessed final determination order of the DEO. The said order was challenged by the petitioner in O.P. No. 28557 of 2000 and the original petition was dismissed by

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WP(C).No.29817 OF 20125

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judgment dated 21.02.2006.

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The petitioner states that, after the revised

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final determination order passed on 31.01.1999, no steps were taken to recover the said amount and the claim became barred by limitation on 31.01.2002. However, during 2012, when the petitioner took steps

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to remit the land tax in respect of his property, he was informed by Village Officer, the 3^rd respondent that the land tax cannot be accepted due to the pendency of revenue recovery proceedings initiated against him in respect of the contribution towards Motor Transport Workers Welfare Fund. Ext. P4 is the information issued to the petitioner in this regard by the 3^rd respondent under the Right to Information Act. The petitioner contends that the revenue recovery proceedings cannot be continued against him as the original debt itself has been barred by limitation. Accordingly, the petitioner has preferred this writ petition praying for a declaration that the

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revenue recovery proceedings initiated against him is illegal and beyond the jurisdiction as the original debt is barred by limitation. The petitioner has also sought for a direction to the Village Officer to accept land tax in respect of his property.

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A counter affidavit dated 15.06.2013 is filed on behalf of the 2^nd respondent Tahsildar wherein it is stated that pursuant to final determination orders dated 04.08.1995 and 31.01.1996 and the requisition by the Board, revenue recovery demand notices under Section 7 of the RR Act were served on the petitioner on 08.03.1996 and 12.07.1996 respectively. It is further stated that, pursuant to Ext. P2 order of the Government setting aside the final determination orders, the Board reassessed the contribution by order dated 31.01.1999 as Rs. 13,923/- and interest, and the DEO, as per letter dated 30.07.1999, requested the District Collector to realise the reassessed amount with interest through

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revenue recovery proceedings. The petitioner challenged the reassessed final determination order in O.P. No.28557/2000 and the challenge finally ended in the dismissal of the original petition.

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This Court on 05.01.2022, directed the learned Government Pleader to get the requisition based on which the revenue recovery proceedings referred to in Ext.P4 is initiated and the learned Government Pleader has filed a memo dated 04.02.2022 producing the copies of the following

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documents:-

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(i) Requisition for recovery in Form 24 dated 09.11.1995 issued by the DEO of the Board in respect of final determination order dated 04.08.1995.

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(ii) Demand notice in Form 1 under Section 7 of the RR Act for recovery of Rs.8,342/- in respect of final determination order dated 04.08.1995.

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(iii) Letter dated 30.07.1999 of the DEO to the

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District Collector requesting to realise the reassessed contribution of Rs. 13,923/-.

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(iv) Letter dated 07.06.2008 of the DEO to the District Collector requesting to realise the reassessed contribution of Rs. 13,923/-.

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(v) Judgment dated 21.02.2006 in O.P. No. 28557 of 2000.

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(vi) G.O. (Rt) No. 3079/2000/LBR dated 24.08.2000 rejecting the appeal against re-assessed final determination order.

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10.The learned Government Pleader has also filed a Statement dated 21.02.2022 as directed by this Court stating the details of determination orders, the requisitions made by the Board, the demand notices issued by the District Collector and contending that when revenue recovery proceedings are set in motion, there can be no limitation. It is also stated that the petitioner has suppressed the proceedings initiated by him against the revised final

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determination order before the Government and

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before this Court.

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A statement dated 13.09.2018 is filed on behalf of the 4^th respondent, DEO wherein it is stated that the petitioner was attempting to evade the payment of contributions due to the Board and the revenue authorities acted on the request of the Board for recovering the arrears under the RR Act. A statement dated 17.02.2022 is also filed on behalf of the 4^th respondent as directed by this Court, stating the details of requisitions made by the Board and contending that the recovery proceedings were initially initiated pursuant to requisitions under Section 69 (2) of the RR Act in Form 24 dated 09.11.1995 and 29.03.1996 and continued as per letter dated 30.07.1999 issued pursuant to reassessed final determination order dated 31.01.1999.

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A statement of computation of limitation for initiating revenue recovery proceedings for recovery

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of contribution to the Board is filed by the counsel for the petitioner wherein it is stated that even if the

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limitation runs from 07.06.2008, the proceedings are barred by limitation.

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I have heard Sri. C.S.Manilal, the learned counsel for the petitioner, Sri.C.N.Prabhakaran, the learned Senior Government Pleader for respondents 1 to 3 and Sri. K.S. Manu, the learned standing counsel for the 4^th respondent.

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Sri.C.S.Manilal contends that, the revenue recovery proceedings initiated consequent to requisition for recovery under Section 69 (2) of the

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RR Act, pursuant to the final determination orders dated 04.08.1995 and 31.01.1996 collapsed and cannot survive any further on the final determination orders being set aside by the Government by Ext. P2 order. The learned counsel relied on the decisions of the Hon'ble Supreme Court in Income tax Officer,

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Kolar Circle, Kolar and another v. Seghu

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Buchiah Setty [AIR 1964 SC 1473], Mohan Wahi v. Commissioner, Income Tax, Varanasi [2001 (4) SCC 362] and Vijayakumar v. District Collector [2013 (2) KLT 458] in support of the said contention. The learned counsel further submits that, there was no prohibition for the respondents to initiate revenue recovery proceedings for the recovery of the amount pursuant to the re-assessed final determination order dated 31.01.1999 after the dismissal of O.P. No.28557 of 2000 by judgment dated 21.02.2006. However, no revenue recovery proceedings were initiated to recover the amount covered by the re-assessed determination order dated 31.01.1999. It is contended by the learned counsel for the petitioner that, the request made by the 4^th respondent in his letter dated 30.07.1999 was for recovery of the amount in respect of 'R.R.C No.719/92-93 dated 09.11.1995 and R.R.C No.719/93-95 dated 29.03.1996', which proceedings

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cannot survive pursuant to Ext.P2 order of the Government. It is also contended that, pursuant to the re-assessed final determination order dated 31.01.1999, there was no requisition in Form No.24 under Section 69 (2) of the RR Act by the 4^th respondent and no consequential proceedings were issued by the District Collector. It is contended that, since no recovery proceedings under the RR Act have been initiated against the petitioner for the recovery of the contribution towards the Motor Transport Workers Welfare Fund Board under the re-assessed final determination order dated 31.01.1999, the same is barred by limitation under Article 137 of the Indian Limitation Act, 1963. The learned counsel relied on the decision of the Full Bench of this Court in Raveendran Nair v. State of Kerala [2014 (4) KLT 625]. Referring to the decision in Raveendran Nair (supra), the learned counsel submits that, it has been held by the Full Bench that, the amounts due to

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the Motor Transport Workers Welfare Fund Board and Toddy Workers Welfare Fund Board are not Government dues for the purpose of Article 112 of the Limitation Act and the Board cannot claim the benefit of the provision contained in Article 112. Sri.Manilal relies on the decision in Halimathu Beevi

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v. State of Kerala [1999 (3) KLT 279] wherein this Court has held that the date of requisition under Se ction 69 (2) in Form No.24 should be taken as the date of initiation of proceedings. Accordingly, the learned counsel for the petitioner argues that, the amount determined under the re-assessed final determination order cannot be recovered from the petitioner at this distance of ti me.

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Per contra, Sri.C.N.Prabhakaran, the learned Senior Government Pleader would contend that, the revenue recovery proceedings were initiated pursuant to the final determination order dated 04.08.1995 and the revenue authorities have powers

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to issue modified orders from time to time and the revenue recovery proceedings cannot be said to have collapsed, on the Government setting aside the final determination order. According to Sri.Prabhakaran, the revenue recovery proceedings initiated pursuant to the final determination order dated 04.08.1995 and pursuant to the requisition dated 09.11.1995 in Form No.24 would survive Ext.P2 and there is no question of limitation as contended by the petitioner. Sri.Prabhakaran also refers to Section 71 of the RR Act and the SRO issued thereunder and submits that the 4^th respondent can make requisition for recovery of the contribution as public revenue due on land and the provisions of Article 112 of the Limitation Act will apply. The learned Senior Government Pleader would submit that, the revenue recovery proceedings having been set in motion with the first determination order and the requisition made pursuant thereto, there can be no limitation at all. It

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is contended that, the proceedings under the RR Act initiated pursuant to requisition under Section 69 (2) will remain unaffected by the annulment of the final determination order by Ext. P2. In support of the said contention, Sri.Prabhakaran relies on the decision v. reported in Molly Soman, W/o.Soman Tahasildar (R.R) Adoor Taluk Office, Adoor [2020 (3) KHC 254] and paragraph No.6 of the said decision reads as follows:-

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“6. Learned counsel for the appellant submitted that by virtue of the dictum laid down by the Hon'ble Apex Court in State of Kerala V. Y.R.Kalliyanikutty (supra), a debt barred under law of limitation cannot be recovered. At the same time, the question with respect to initiation of revenue recovery proceedings under the Kerala Revenue Recovery Act, 1968 was considered and held that if a requisition is made by the concerned institution under Section 69(2) of the Kerala Revenue Recovery Act, 1968, the proceedings are set in motion and thereafter, there can be no limitation at all. Admittedly, the decree passed by the court below is of the year 2014 and that the requisition made is in the year 2017. Therefore, it is amply clear that invocation of the provisions of the Kerala Revenue Recovery Act, 1968 is within the period of limitation, prescribed under Section 69 (2) of the Kerala Revenue Recovery Act, 1968. Therefore, we do not find any merit in the contentions so

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advanced.”

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The learned standing counsel for the Board

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supports the contentions of the learned Government

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Pleader.

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In Raveendran Nair (supra), the Full Bench held that, to apply Article 112 of the Limitation Act, amounts due have to be amounts due to the State and the Motor Transport Workers Welfare Fund Board established under the Kerala Motor Transport Workers' Welfare Fund Act, 1985 will not come within

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the purview of Government for the purpose of Article 112 of the Limitation Act, and the Board cannot claim the benefit of the provisions contained in Article 112.

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Article 137 of the Limitation Act reads as follows:

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"137. Description of application: Any other application for which no period of limitation is provided elsewhere in the Division. Period of Limitation:

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Three Years Time from which period begins to run:

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When the right to apply accrues."

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WP(C).No.29817 OF 201217

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As per the provisions of Section 69,

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proceedings under the RR Act commence as and when a requisition is made by the requisitioning authority to the District Collector to recover the amount due from the defaulter. The Hon'ble Supreme Court, in State of Kerala v. V. R. Kalliyanikutty [1999 KHC 297: 1999 (2) KLT 146 (SC): 1999 (3) SCC 657: AIR 1999 SC 1305], held as under:

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“Under the Kerala Revenue Recovery Act such process

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of recovery would start with a written requisition issued in the prescribed form by the creditor to the Collector of the District as prescribed under S.69(2) of the said Act. Therefore, all claims which are legally recoverable and are not time barred on that date can be recovered under the Kerala Revenue Recovery Act."

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In Halimathu Beevi (supra), this Court considered the question as to whether it is the date of requisition under Section 69 (2) or the date of demand under Section 7 of the RR Act that has to be

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taken as the date on which the revenue recovery

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proceedings are deemed to have been initiated. This Court, after referring to Kalliyanikutty (supra), held that, the date of requisition under Se ction 69 (2) in Form No.24 should be taken as the date of initiation of revenue recovery proceedings. The requisitions of the 4^th respondent under Se ction 69 (2) of the RR Act

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in Form No.24 are dated 09.11.1995 and 29.03.1996 (only Form No.24 dated 09.11.1995 is produced before this Court along with Memo filed by Government Pleader dated 04.02.2022). The requisitions made by the 4^th respondent pursuant to the final determination orders dated 04.08.1995 and 31.01.1996 were set aside by the Government by Ext. P2 directing the 4^th respondent to reassess the contribution. Therefore, the revenue recovery proceedings initiated pursuant to Form No.24 on 09.11.1995 and 29.03.1996 collapsed and cannot survive.

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21.The Hon'ble Supreme Court in Income tax

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Officer, Kolar Circle (supra) held that, where an appeal is preferred by an assessee against an order of assessment passed by the Income-tax Officer, and in the appeal the appellate order reduces the assessment, then the original assessment order is vacated and consequently, the notice of demand served upon the assessee falls to the ground and the default based on it and all consequential proceedings must be taken to have been superseded and fresh proceedings have to be started to realise the dues as found by the revised order. The Court held in paragraph 17 as under:

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“17. The order of reduction must, in my opinion, necessarily have the effect of setting aside the original order as a whole. It does not simply strike out a few of the figures appearing in the original order. That would really be a case of rectification for which provision is made in S.35 of the Act. What an appellate order does in a case of reduction is, as in the present case, to go into all the figures and arrive afresh at the assessable income which replaces the amount of the income arrived at by

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the Income Tax Officer. Therefore it seems to me that in all cases of an appellate order reducing the assessment the original order goes and if it goes, of course the notice of demand also falls to the ground and the default based thereupon also ceases to be default anymore. Suppose the appellate order itself stated that a smaller amount of tax was payable after it had reduced the figure of the assessable income at which the Income Tax Officer had arrived. Indeed I cannot imagine how else it can be expressed. After such an order the original order must go for the debt being one the two cannot exist together. If that order goes, all default arising out of it must also go.”

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The said decision was referred to with approval in Philips India Ltd. and another v. Assistant Commissioner, Commercial Taxes, Calcutta and others [(2004) 10 SCC 436: AIR 2005 SC 2894]. Since the final determination orders pursuant to which requisitions in Form No.24 under Section 69 (2) were issued, have been set aside, all consequential revenue recovery proceedings must be taken to have been superseded and cannot be

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continued. After the issuance of re-assessed final

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determination order, though a letter dated 30.07.1999 is issued by the 4^th respondent to the District Collector to initiate revenue recovery proceedings on the basis of earlier requisitions in Form No. 24 which were superseded, no fresh Form No.24 or fresh demand notice under Section 7 of the RR Act for realising the re-assessed final determination order is seen served on the petitioner. After the dismissal of O.P. No.28557 of 2000 by judgment dated 21.02.2006, though the 4^th respondent by letter dated 07.06.2008 requested the

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District Collector to realise the re-assessed contribution of Rs. 13,923/-, the same was not followed by fresh requisition under Section 69 (2) in the prescribed form viz; Form No.24, or a certificate for recovery by the District Collector under Section 69 (3) in Form 25, or demand notice under Section 7 of the RR Act. Therefore, no revenue recovery

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proceedings can be said to have been initiated after the re-assessed final determination order dated 31.01.1999 and after the dismissal of O.P. No.28557 of 2000 on 21.02.2006. Though Sri. Prabhakaran is right in contending that the revenue recovery proceedings have been set in motion with the first determination order and the requisition made pursuant thereto, the proceedings collapsed with Ext. P2 order setting aside the final determination order. Thereafter, there is nothing on record to show that a requisition in the prescribed Form under Section 69 (2) has been issued by the 4^th respondent requisitioning authority or a certificate of recovery in Form 25 or a demand notice under Section 7 has been issued by the District Collector for the recovery of the contribution as per the re-assessed final determination order. Therefore, the decision in Molly Soman (supra) cannot be of any help to the respondents.

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22.The contention of Sri.Prabhakaran that, the

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4^th respondent can make requisition for recovery of the contribution as public revenue due on land and the provisions of Article 112 of the Limitation Act will apply, also cannot stand in the light of the Full Bench decision of this Court in Raveendran Nair (supra). Since the amount determined is due to the Motor Transport Workers Welfare Fund Board, the Board cannot claim the benefit of the provisions contained in Article 112 of the Limitation Act. Since no requisition is made by the Board under Section 69(2) of the RR Act to recover the contribution under the re-assessed final determination order within three years of re-assessment on 31.01.1999 or after the dismissal of O.P. No.28557 of 2000 on 21.02.2006, the revenue recovery proceedings are barred by limitation and cannot be continued as against the petitioner.

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23.Before parting with the matter, an alternate

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contention of the learned Senior Government Pleader has to be addressed. According to the learned Senior Government Pleader, the letter dated 30.07.1999 of the DEO of the Board to the District Collector to realise the reassessed contribution of Rs.13,923/with interest shall be treated as a modified requisition under section 69(6) of the RR Act. Section 69(2) provides that when any amount, other than public revenue due on land, which is recoverable under the RR Act, is due, the officer charged with its realisation may send to the District Collector of the district in which the defaulter or his surety resides or holds property, a written requisition in the prescribed form, duly verified and certified by him. Section 69(6) of the RR Act provides that the requisition issued under sub-section (2) of section 69 may be modified from time to time by the issuing officer and the requisition so modified shall be the authority of the Collector to modify the demand. Since the final determination

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orders are set aside by the Government by Ext.P2 order, the requisition, the certificate and the demand made pursuant thereto cannot survive. In such case, based on the fresh determination order, fresh written requisition in the prescribed form, duly verified and certified by the requisitioning authority has to be issued. The word 'modify' literally means to change something slightly. The Constitution Bench of the Hon'ble Supreme Court in M/s Burrakur Coal Co. Ltd. v. Union of India [1961 KHC 601: AIR 1961 SC 954] considered the meaning of the word 'modify', and held as follows:

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“The meaning of the word "modify" fell to be considered, In re Delhi Laws Act, 1912, 1951 SCR 747 at pp. 793-94: (AIR 1951 SC 352 at p. 345). As pointed out in the opinion of Kania C. J., the word "modify" means, according to Oxford Dictionary, "to limit, restrain, to assuage, to make less serve, rigorous, or decisive to tone down". It also means "to make partial changes in: to alter without radical

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transformation". In Rowland Burrow' "Words and Phrases", the word "modify" has, however, been defined as meaning "vary, extend or enlarge, limit or restrict".

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A modified requisition under Section 69(6) presupposes the existence of a requisition under Section 69(2). As I have already held, when the final determination orders were set aside, the requisition, the certificate and the demand cannot survive and there exists no requisition or certificate or demand to be modified. The letters dated 30.07.1999 and 07.06.2008 of the DEO, the requisitioning authority, cannot be construed as modified requisition coming within the purview of section 69(6). Further, the same cannot also be considered as fresh requisition since the same is not in the prescribed form and not verified as mandated under Se ction 69 (2) of the RR Act. Therefore, the said contention of the learned Senior Government Pleader also fails.

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It is declared that the revenue recovery

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proceedings against the petitioner are barred by limitation and cannot be continued as against him. The land tax in respect of the petitioner's property shall be accepted if there are no other impediments.

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The writ petition is allowed as above. There will

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be no order as to costs.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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spc/

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APPENDIX

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PETITIONER'S EXHIBITS :-

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EXT.P1:TRUE COPY OF THE FINAL ASSESSMENT ORDER DATED
31.1.1996.

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EXT.P2:TRUE COPY OF THE ORDER OF THE GOVERNMENT DATED 1.4.1998.

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EXT.P3:TRUE COPY OF THE ORDER OF THE GOVERNMENT DATED
19.1.2000.

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EXT.P4:TRUE COPY OF THE COMMUNICATION DATED 6.12.2012 OF
THE VILLAGE OFFICER.

C.S.Varkey v. the District Collector

Case brief

What is this about?

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C.S.Varkey v. the District Collector

Case brief

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