DISTRICT COLLECTOR KOZHIKODE Vs. 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 Ext. P2 attachment proceedings, and Ext. P5 order rejecting the writ petitioner's claim that the attached properties were hers, and quashing the said two orders.

(2.) One V. C. Mahammed Haji, the husband of the writ petitioner, died on 17-10-1963. On 30-4-1962 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 24-6-1963 calling upon Mahammed Haji to pay a sum of above Rs. 6,000/- by way of Sales Tax. Mahammed Haji paid up a sum of about Rs. 2, 200/- under several chalans. These facts are disclosed in Para.2 of the counter affidavit. It was thereafter that be died on 17-10-1963. On 10-5-1962 be had executed & deed of gift conveying the property attached by Ext. P2 to the petitioner in the writ petition. The assessment order, in the wake of the return, was passed by Ext. P1 proceedings dated 9-11-1964. The assessment was against M. Hamsa, shown as the legal representative of the deceased Mahammed Haji. The deficit tax was shown as Rs. 3,842.24. For this, attachment was levied by Ext. P2 proceedings against the property that was gifted to the writ petitioner. She filed Ext. P3 claim petition and also Ext. P4 petition before the District Collector which was rejected by Ext. P5. The learned Judge noticed S.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 S.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 and another ( ILR 1962 (1) Ker. 396 ) and Mariam v. Tahsildar, North Wynad ( 1969 KLT 860 ). The learned Judge observed that S.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 KLT 103 ).

(3.) The decision in 1974 KLT 103 was reviewed, and after rehearing, the decision rendered is reported in Gourikutty Amma v. District Collector, Alleppey ( 1975 KLT 29 ). It is enough to notice that the fresh decision rendered after review has put the matter very guardedly and cautiously, referring to the decision in 1974 KLT 103. The fresh decision merely remarked: