VADIVELU GOWDER Vs. STATE OF KERALA

JUDGEMENT

(1.) The first petitioner purchased a cardamom estate called "Asokavanam" in the name of his deceased daughter Janaki Thai, who was married to one Govinda Raj in the year 1953. Janaki Thai died on April 26, 1954. After her death, the first petitioner, his wife the second petitioner, and their children, partitioned their properties, including Asokavanam, amongst themselves. For agricultural income tax, the first petitioner submitted returns of agricultural income for the years 1126 M.E., 1951-52, 1952-53, 1953-54 and 1955-56 A.D. inclusive of the income from Asokavanam. He was assessed for these years, except for the year 1952-53, by the Kottayam Special Circle by order Ext. P. 2. Although the first petitioner had submitted a return of agricultural income for the year 1952-53 as stated above, and Govinda Raj had not made any return of his income, the latter was assessed for that year under S.18(4) of the Travancore-Cochin Agricultural Income Tax Act, 1950 by order Ext. P. 3; this was inclusive of the income from Asokavanam. Pursuant to Ext. P. 3, proceedings under the Revenue Recovery Act were initiated through the office of the District Collector, Kottayam, the second respondent in this petition, against the petitioners and their children. Exts. P. 7 series, P. 8 series and P. 9 series are the demand notices and other notices issued by the Tahsildar, Kottayam, the third respondent herein, for the recovery of the tax remaining due. These proceedings were against the petitioners and their children, as if the tax was payable by them, and was realisable out of property belonging to them. So the position was, that pursuant to the assessment against Govinda Raj, properties purporting to belong to the petitioners were proceeded against, under the Revenue Recovery Act. When the sale was about to take place and the first petitioner was served with a memo by the Tahsildar, he applied to the Tahsildar that he may be permitted to make a deposit of the amount of the tax under protest, and the Tahsildar ordered the deposit to be made. Accordingly, the first petitioner deposited on July 29, 1959, a sum of Rs. 1972-31 being the balance of tax due, and the sale of the properties was thus averted. The petitioners have filed this petition to this court under Article 226 of the Constitution, to quash Ext. P. 3, assessment order, on Govinda Raj, and the steps taken against the petitioners under the Revenue Recovery Act.

(2.) It is seen, that for the other years mentioned above, the first petitioner was assessed on income, inclusive of the income from Asokavanam, and that only for the year 1952-53 Govinda Raj had been assessed, and that too, upon his failure to make a return of the income. It is the petitioners' case that Janaki Thai had no interest in this property, though the sale deed was taken in her name and that it belonged to the joint family of the petitioners and their children, and was in its possession all the time. Clearly, the petitioners have no locus standi so far as the assessment order against Govinda Raj is concerned, and therefore the prayer for quashing Exts. P. 3 cannot be entertained.

(3.) It was pursuant to Ext. P-3, that the proceedings under the Revenue Recovery Act had been taken against the petitioners, as if they and their properties are liable for the tax. Certainly such proceedings are irregular; the learned Government Pleader who appeared for the respondents, did not contend to the contrary. His main point was, that the deposit having been made by the first petitioner, the whole proceedings under the Revenue Recovery Act must be deemed to have come to an end, and that the first petitioner's remedy, if at all, is either under S.37 read with S.35 of the Revenue Recovery Act, or by way of a fresh suit. In my opinion, S.37 does not debar the petitioners from seeking to quash the proceedings under the Revenue Recovery Act, which are illegal, the deposit having been made, not in recognition of their validity, but under protest, and accepted as such. The Revenue Recovery proceedings being illegal, I do not think, that it will be proper to decline the jurisdiction of this court under Article 226 and compel the petitioners to resort to a fresh suit. Even without making the deposit, the petitioners could have approached this court for a writ to quash the proceedings, and their position is not any the worse, by reason of the deposit which the first petitioner has made. I am not prepared to accept the contention of the learned Government Pleader, that the proceedings had come to an end and there is nothing that can be quashed, merely because of the deposit which was made in the circumstances stated. I therefore quash the steps taken against the petitioners and the property under the Revenue Recovery Act evidenced by Exts. P. 7 series, P. 8 series, and P. 9 series.