FRANCIS MUKKANIKKAL Vs. DISTRICT COLLECTOR, ERNAKULAM DISTRICT

JUDGEMENT

(1.) The petitioner, who was the Managing Director of the fourth respondent Company at the relevant time, is aggrieved by the impugned proceedings initiated by the third respondent Greater Cochin Development Authority (GCDA) as well as the consequential impugned revenue recovery proceedings initiated by respondents 1 and 2, in respect of the lease of a shop room taken by the fourth respondent Company from the third respondent GCDA. It is one of the specific contentions of the petitioner that the rental agreement was between the third respondent GCDA (lessor) and the fourth respondent Company (M/s.Malayalee Realtors Ltd.) and that merely because the petitioner happened to be the Managing Director of the said Company at the relevant time will not empower the third respondent GCDA to impose the said liability personally on the petitioner inasmuch as the liability, if any, in that regard could be imposed only on the fourth respondent Company. Further it is the case of the petitioner that so long as the alleged arrears are disputed by the lessee, then the third respondent GCDA (lessor) cannot unilaterally adjudicate the dispute and the dispute regarding liability, if any, so as to proceed to initiate revenue recovery proceedings and that at best the third respondent GCDA could have resorted only to initiation of civil suit proceedings for recovery of such disputed liability, so that the adjudication is facilitated through an independent forum like the civil court, etc. The facts leading to this case are as follows :

(2.) It is the case of the petitioner that in his capacity as the then Managing Director of the fourth respondent Company, he had given Exhibit-P3 notice dated 11.2011 to the third respondent GCDA that, as per the decision of the Board of Directors of the fourth respondent Company, the lessee is giving advance information that they are vacating the abovesaid shop room, etc. The petitioner would further aver that all the dues up to 23.3.2011 were paid by the fourth respondent Company to the third respondent GCDA for which Exhibit-P4 receipt dated 23.3.2011 has been issued by the competent officer of the third respondent GCDA showing that a total amount of Rs.1, 95, 025/- has been paid by the Company, which is also inclusive of the Central Service Tax amount of Rs.18, 212/- and the balance amount reflected in Exhibit-P4 coming to Rs.1, 76, 813 (viz.Rs.1, 95, 025/- - Service Tax amount of Rs.18, 212/- = Rs.1, 76, 813/-) was the then rental arrears, etc. Immediately thereafter the fourth respondent lessee Company had given Exhibit-P5 letter dated 25.3.2011 to the third respondent GCDA saying that all arrears up to 25.3.2011 has been duly paid by them and further they have requested the third respondent GCDA to send a technical personnel to the shop room and for verification to allow the lessee to close the premises in the month of March, 2011 itself. To this Exhibit-P6 letter dated 1.4.2011 was given by the third respondent GCDA to the lessee intimating receipt of Exhibit-P5 letter and further stating that the lessee should have given three months prior notice as per the agreement and that the rental arrears up to 31.3.2011 comes to Rs.1, 81, 611/- and that the said amount along with service tax component and the interest thereon along with three months rent therefrom, presumably from 1.4.2011 should also be paid by the lessee and that they should also produce receipts regarding payment of electricity bill, building tax and such other liabilities, etc. Exhibit-P6 letter dated 1.4.2011 is seen signed by the Secretary of the third respondent GCDA on 4.4.2011. In response thereto, Exhibit-P7 letter was issued on behalf of the fourth respondent lessee Company through the petitioner in his capacity of the then Managing Director stating that they have paid all the up to date arrears and that they should be refunded their advance/security deposit and in Exhibit-P7 letter, it is stated by the fourth respondent that they are enclosing the payment details of rent, Corporation tax payment details, KSEB electricity bill payment and disconnection details intention to GCDA office and key hand-hovering letter, etc. In response thereto, the third respondent GCDA has sent Exhibit-P8 notice dated 6.11.2011 stating that the rent arrears are due from the month of November, 2010 up to June 2011 and the rental arrears come to Rs.3, 08, 899/- and that they should also make available necessary details to show that the Corporation building tax, and KSEB electricity charges have been paid by the lessee, etc. The lessee thereafter had made available Exhibit-P9 receipt dated 25.2012 from the Corporation of Cochin showing payment of Rs.70, 987/- towards property tax from 2007-2008 up to 11.12011.

(3.) The third respondent GCDA has sent Exhibit-P10 notice dated 6.6.2012 to the lessee wherein they have referred to a report dated 26.4.2012 said to have been sent to the GCDA by their Engineering wing that they have received the key only on 6.12.2011 and that therefore, the lessee is bound to pay the rental arrears and interest up to 15.6.2012 which comes to Rs.7, 16, 699/- along with service tax component of Rs.88, 584/-, thus totalling to Rs.8, 05, 283/- which should be remitted by the lessee on or before 15.6.2012, etc. and to hand over details to show that electricity connection has been discharged by the KSEB and that there are no arrears from the KSEB, etc. In response thereto, the lessee has sent Exhibit-P11 reply dated 21.6.2012 to the third respondent GCDA stating that they had closed their shop room in the GCDA complex as early as on 31.2011, which has been duly informed to the third respondent GCDA along with prior notice and that they have fulfilled the requirement of advance notice being given to the lessor and that because of the demand made by the third respondent GCDA, they have disconnected the electricity connection on 31st March, 2011, and that pursuant to the notice of the lessor, the lessee has settled the entire amount of Corporation Building tax and they have paid all the rental arrears up to 31.2011. Therefore, pursuant to Exhibit-P10 dated 6.6.2012, it appears that the third respondent GCDA has made a requisition to the first and second respondents who are the authorities under the Revenue Recovery Act for realising the alleged arrears which was allegedly due from the fourth respondent lessee, but showing that the petitioner who was the Managing Director is personally responsible for such liability of the lessee Company, etc. Accordingly, the first and second respondents have issued Exhibit-P1 revenue recovery proceedings dated 28.5.2014, against the petitioner in his individual capacity for recovering an amount of Rs.8, 65, 163/-. It is in the light of these aspects that the petitioner has filed the instant Writ Petition (Civil) with the following prayers :