RAMACHANDRAN NAIR B Vs. STATE OF KERALA

JUDGEMENT

(1.) These writ petitions are filed challenging revenue recovery proceedings for recovery of arrears of abkari dues due from petitioners and two other licencees, namely Mr. Mammen Koshy and Mrs. Mary Sophy Koshy, who are the brother and mother respectively of petitioner in WP(C) No. 29483/06. These two licencees namely Mammen Koshy and Mary Sophy Koshy are dead and it is not known whether there is any proceedings pending against the legal heirs of these two persons. Since the facts are almost identical, we do not intend to consider the details of licence issued and the exact amount due from each and every licence. The total abkari dues from all the licencees including the petitioners as on 31/03/1990 was Rs. 1,18,34,068/- which is for the years 1987-88 to 1989-90. RR proceedings started soon after the default and government notified 42 acres of properties of the defaulters for sale in revenue auction in 1990 itself. However, since there was no bidders for the same, entire properties were purchased by the Government for the nominal Value of Rs. 1/- Immediately after purchase of the property by the Government and taking over possession from the defaulters, 15 acres of land was given free of cost to Navodaya Vidyalay Samithy at Kottayam on 24-07-1990 and three years thereafter, another 9.84 acres of land was also given to them, free of cost. As such, 24.84 acres of land was given free of cost to Navodaya Vidyalaya School as it is run by the Government of India. The balance land taken over from the petitioners was retained by the government for few years and thereafter Government started distributing and selling the land to various Government Agencies, free of cost and also for consideration, the beneficiaries being Indian Institute of Mass Communication, Water Resources Development and Management, etc.. On 25-04-1995. the Government gave 4.20 acres of land free of cost to the Indian Institute of mass Communication. Out of the remaining land, one acre was given for a consideration of Rs. 5,06,196/- to the Water Resources Development and Management for construction-of a Sub Centre for them at Kottayam. The balance land of 11.55 acres was given to the Rubber Board, another Central Government Agency, on 28-05-1997 for a consideration of Rs. 75,30,866/- It is conceded that from out of the land taken over, another one acre is left with the Government, which they propose to allot to the Consumer Forum for construction of Court and for other purposes. Learned Government Pleader submitted that proposals are already finalised for assignment of this land to various Governmental agencies including Consumer Forum. Even after credit of Rs. 75,30,866/- already recovered by the Government to the loan arrear account of the defaulters, there will be substantial arrears due from the defaulters. According to the learned Government Pleader, government is entitled to recover entire arrears and the entitlement of the defaulters is only to get full credit of the recovered amount.

(2.) Learned Counsel for the petitioners contended that there is amnesty scheme introduced by the government under which petitioners are willing to settle the entire liabilities with applicable rate of interest and they should be restored the land. On the other hand, learned Government Pleader submitted that since the defaulters did not challenge taking over of the land years back, Government is free to appropriate the land for it s own purposes and accordingly, the government has distributed the land among various agencies and the said land cannot be restored. We are in agreement with the contention of the learned government Pleader that petitioners have no right to challenge the purchase of the land by Government has appropriated the land for various purposes, which are all public purposes.

(3.) However, we find force in the contention of the petitioners that further recovery proceedings against them should not be allowed to be continued for ore than one reason. In the first place, it is admitted that on sale of 12 acres of and to Governmental agencies at moderate price fetched the Government above Rs. 75 lakhs, which accounts for almost 70% of the liabilities as on 31-03-1990. In fairness, the Government should have fixed reasonable value for the balance land assigned to various agencies and if the fair price was given credit in the arrear amount of the defaulters, then they would have got refund of massive amounts. It is admitted that all the properties are situated in and around Kottayam town and the value of 42 acres of land as of now would be crores of rupees. Probably the value of balance one acre of land taken over and still left with the Government will be sufficient to take care of the entire debt. However, it is impossible to restore the land to petitioners because out of 42 acres taken over by Government, 41 acres have already been assigned to various Governmental agencies mostly free of cost and balance for consideration, which has to be credited in the arrear account of the petitioners. Since assignment of 12 acres of land fetched the Government above Rs. 75 lakhs in 1997, we have to necessarily assume that the fair market value as on that date for the balance 30 acres of land would have been multiples of liabilities due from petitioners and therefore it will be thoroughly inequitable to permit further recovery from petitioners, after allowing the Government to enjoy the properties taken over from the petitioners free of cost. In fact, in many cases, lands acquired by the Government years back and retained as bought in land were restored to defaulters on clearing the arrears, either by Government itself or though Court orders. In this case, it so happened that out of three major defaulters, two of them are dead and the other is around 90 years of age. In short, defaulters were either dead or did not have the capacity to resist the recovery steps taken against them. Moreover, we feel Government is the only beneficiary for the lapses on the part of the defaulters because their failure to contest resulted in property worth crores of rupees vesting in Government for Government s liberal appropriation for use by school and other Governmental agencies. Timely challenge of recovery proceedings would have led to restoration of land to defaulters and considering the value of the properties, defaulters would have gained substantially even after settling arrears with full interest. However, death of two defaulters and advanced age of the surviving one prevented them from taking any timely steps for settlement and restoration of property. In view of the substantial recovery and appropriation of defaulters land by Government, the value of which in our estimation is multiples of the balance arrears, we partly allow the writ petitions by quashing the further revenue recovery proceedings pending against the defaulters, guarantors and also against legal heirs of the deceased licences, namely Mr. Mammen Koshy, whose 15 acres of land was taken over by the Government as bought in land and Mrs. Mary Sophy Koshy, whose 9.84 acres of land was acquired by the Government.