DISTRICT COLLECTOR KOZHIKODE Vs. MAKKOTTATHIL KUNHI AYISIA UMMA

JUDGEMENT

(1.) THE appeal is by the sales tax department of the State (the Collector, the Tahsildar and the Sales Tax Officer), against the decision of a learned Judge who allowed O. P. No. 127 of 1973, setting aside exhibit P2 attachment proceedings, and exhibit P5 order rejecting the writ petitioner's claim that the attached properties were hers and quashing the said two orders.

(2.) ONE V. C. Mahammad Haji, the husband of the writ petitioner, died on 17th October, 1963. On 30th April, 1962, he had submitted the return of his turnover under the Sales Tax Act, in respect of his business. As the return itself disclosed that sales tax was due from him, a demand notice was issued on 24th June, 1963, calling upon Mahammad Haji to pay a sum of a above Rs. 6,000 by way of sales tax. Mahammad Haji paid up a sum of about Rs. 2,200 under several chalans. These facts are disclosed in paragraph 2 of the counter-affidavit. It was thereafter that he died on 17th October, 1963. On 10th May, 1962, he had executed a deed of gift conveying the property attached by exhibit P2 to the petitioner in the writ petition. The assessment order, in the wake of the return, was passed by exhibit P1 proceedings dated 9th November, 1964. The assessment was against M. Hamsa, shown as the legal representative of the deceased Mahammad Haji. The deficit tax was shown as Rs. 3,842. 74. For this, attachment was levied by exhibit P2 proceedings against the property that was gifted to the writ petitioner. She filed exhibit P3 claim-petition and also exhibit P4 petition before the District Collector, which was rejected by exhibit P5. The learned Judge noticed section 5 of the Kerala Revenue Recovery Act, which authorises recovery of arrears of revenue only by attachment and sale of the defaulter's immovable property and observed that the writ petitioner is not a defaulter in respect of the arrears sought to be recovered. On the date of the demand notice under section 34, the property did not belong to the defaulter as it had been transferred under a registered gift deed in favour of the writ petitioner. It was, therefore, not liable to coercive process under the Revenue Recovery Act. The learned Judge relied on Abdulla v. State of Kerala (I. L. R. (1962) 1 Ker. 396) and Mariam v. Tahsildar, North Wynad (1969 K. L. T. 860 ). The learned Judge observed that section 44 of the Kerala Revenue Recovery Act was not attracted, as the impugned attachment was not for recovery of public revenue due on the land. For this proposition, reliance was placed on Gourikutty Amma v. District Collector, Alleppey (1974 K. L. T. 103 ).

(3.) THIS appeal should therefore succeed. Besides arguing on the merits, counsel for the appellants also contended that the writ petitioner has an alternative remedy of revision under section 83 (1) of the Revenue Recovery Act. That section reads : " 83. Power of revision of Board of Revenue and Government.- (1) The Board of Revenue may, either of its own motion or on an application by any person interested, call for any proceeding which has been taken by the Collector or the authorised officer under this Act and may make such enquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order as it thinks fit : Provided that no order shall be passed under this sub-section without previous notice to the party who may be affected by such order. * * * In view of this alternative remedy available to the writ petitioner, it was contended that the writ petition would abate under article 226 (3) of the Constitution, as amended by the 42nd Amendment, and section 58 of the 42nd Amendment Act. The contention is well-founded and we think that the same should also be accepted.