THANKAMMA Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) The petitioner has approached this Court with the following prayers:-

(2.) The petitioner is the owner of property having an extent of 48.7 ares comprised in Sy.No.269/8-1 of Cheruvally Village, together with a residential building bearing No.IX/672B, Chirakkadavu Panchayath. The petitioner along with her son, who is working in Bhopal, Madhya Pradesh has been residing there since 2002 and she occasionally visits her native place. On 17/5/2010, it was brought to the notice of the petitioner that the second respondent- the Deputy Tahsildar (Revenue Recovery) affixed notices under Ss. 7 and 34 of the Kerala Revenue Recovery Act, 1968 (for short 'the R.R.Act') on the doors of the petitioner's house calling upon to pay a total sum of Rs.2,31,41,787.00 being the alleged sales tax dues payable by her for the assessment years 1999-2000 and 2000-01. On enquiry, the petitioner came to know that the third respondent, her nephew was doing business in Indian Made Foreign Liquor. The third respondent bid auction of Foreign Liquor Retail Depot No.72, Ponkunnam in the name of the petitioner and took a Power of Attorney from the petitioner to run the Indian Made Foreign Liquor Retail Depot. The third respondent made the petitioner to execute a solvency bond worth Rs.12,00,000.00 in the name of the Deputy Commissioner of Excise, Divisional Office, Kottayam. For the purpose of running the Indian Made Foreign Liquor shop, the third respondent took out registration under the Kerala General Sales Tax Act in his name on the rolls of the fourth respondent. The petitioner was caused to stand as a surety for a limited sum of Rs.50,000.00 while taking out KGST registration and a bond was also caused to be given in favour of the fourth respondent. Respondents 2, 4 and 5 have no authority to proceed against the petitioner or her property for realisation of the amount of Rs.2,31,41,787.00 as much as the petitioner's liability at the maximum is only Rs.50,000.00 in the name of Surety Bond by her. There are no abkari dues payable by the licencee of foreign liquor retail depot during the relevant period to the Excise Department. The revenue recovery notice issued by the second respondent is without authority of law. Aggrieved by the said notices, the petitioner has filed this writ petition.

(3.) The second respondent filed counter affidavit stating that the fifth respondent-Commercial Tax Officer, Ponkunnam forwarded a requisition to the first respondent, the District Collector, Kottayam under Sec. 69(2) of the R.R.Act for realisation of a sum of Rs.2,31,41,787.00, being the sales tax arrears from the petitioner. Accordingly, the second respondent issued demand notices to the defaulter under Ss. 7 and 34 of the R.R. Act through the Village Officer, Cheruvally. Since the notice could not be served on the petitioner due to her absence in the residential house, the notice was affixed at her last known address on 17/6/2010. The Village Officer reported that the defaulter was having an extent of 48.71 Ares of land in Cheruvally Village in BL 18 in Sy.No.269/8-1. But she had transferred 44.66 ares of land from the said extent in the name of her son Sri.P.N.Anilkumar, as per sale deed No.2125/04 dtd. 7/5/2004 of SRO, Kanjirappally and mutation was effected in his name. Remaining extent of 04.05 Ares of land was also transferred in the name of Smt.P.N.Ushakumari, who is the daughter of defaulter as per sale deed No.2126/04 dtd. 7/5/2004 of SRO, Kanjirappally. The respondents contended that they are authorised to proceed against the property of the defaulter, transferred in the name of close relatives under Ss. 44(2) and 44(3) of the R.R.Act since the arrears arose before the transfer of the property. Hence notices under Ss. 44(2) and 44(3) of the R.R.Act were also issued against the petitioner. Thereafter, 48.71 ares of land together with a residential building was attached on 23/11/2012 and was posted for auction on 11/3/2013 at 11.30 am after complying with all legal formalities. In the mean while, the defaulter approached the Government for granting stay of revenue recovery proceedings and the Government granted conditional stay and the auction was postponed. Thereafter, the petitioner filed the above writ petition before this Court for staying the revenue recovery proceedings and on the basis of the interim order dtd. 9/4/2013, the revenue recovery steps were stayed. The revenue recovery proceedings against the petitioner are absolutely legal and since the petitioner is the only defaulter, the respondents are entitled to take revenue recovery steps against the petitioner.