P.K. MOHAMMED Vs. THE DISTRICT COLLECTOR

JUDGEMENT

(1.) The petitioner in Writ Petition No. 22684 of 2013 is the appellant before us, aggrieved by the judgment dated 1.8.2018 of the learned Single Judge, who dismissed the Writ Petition after finding no reason to interfere with Exts.P3 and P4 revenue recovery proceedings initiated against him for recovery of penalty amounts confirmed under the Foreign Exchange Regulation Act , 1973. The facts in the Writ Petition would indicate that the petitioner had been imposed the penalty of Rs.10 Lakhs through an adjudication order dated 4.5.1995 (Ext.R3(a)) of the Enforcement Officer (Directorate of Enforcement) under the Foreign Exchange Recovery Act. It is stated that, at the time of issuance of the adjudication order, the petitioner was undergoing incarceration and he was released only on 13.11.1995. It was his case that the demand notice for non-payment of penalty amount was issued to him only in 2001 as evidenced by Exts. R3(c) and R3(e) documents produced in the writ proceedings. Subsequently, a demand by certificate, in terms of Section 70 (1)(iii) of the Foreign Exchange Regulation Act , was issued on 28.1.2009 (Ext.R3(f)) and thereafter, the proceedings under the Kerala Revenue Recovery Act (RR Act) were initiated by the District Collector through a notice dated 6.5.2009 (Ext. R3(h)) issued to the Tahsildar, followed by the notices dated 7.6.2013 and 7.8.2013 (Exts.P3 and P4) under Section 44 (1) and (2) and Section 36 of the Kerala Revenue Recovery Act respectively. The challenge of the petitioner to Exts. P3 and P4 notices was primarily on the contention that the property transferred by him, against which proceedings were initiated under Section 44 of the Revenue Recovery Act, could not be so proceeded against since the said transfer took place in 1996, well before the certificate under Section 70(1)(iii) of the Foreign Exchange Regulation Act was issued in 2009, and the proceedings under the Kerala Revenue Recovery Act were initiated by the District Collector. It was his specific case that, inasmuch as there was no demand notice prior to the sale of the property in 1996, the proceedings under Section 44 of the Revenue Recovery Act was vitiated. The petitioner also raised a plea of limitation in that, the proceedings against him under the RR Act were initiated almost 13 years after the adjudication was completed in 1995. It was further contended by the writ petitioner that the provisions of the Revenue Recovery Act itself would apply to him only after steps were taken by the District Collector, pursuant to the certificate sent to him by the adjudicating authority under the Foreign Exchange Regulation Act , and till such time, the penalty amount due to the Central Government could not be treated as public revenue due on land for the purposes of the Kerala Revenue Recovery Act.

(2.) The learned Single Judge who considered the issue found that, inasmuch as the adjudication order was passed in 1995, and in the period between the said order and the demand notice in 2001, the petitioner had alienated his property in 1996, the provisions of Section 44 (1)/ (2) of the Kerala Revenue Recovery Act stood attracted and therefore the proceedings by way of Ext.P3 and P4 notices could not be assailed.

(3.) Before us, the learned counsel for the appellant/writ petitioner vehemently urges, relying on the decisions reported in Abraham Jacob @ Rajan and Others v. Thomas J. Nidhiri and Others [2008 (2) KHC 180 and Anandan K. and Anothehr v. State of Kerala and others [2009 (4) KHC 1002] , that the mere initiation of proceedings under the Kerala Revenue Recovery Act could not have the effect of attracting the charge under Section 3 of the said Act, by treating the outstanding liability to the Central Government as a public revenue due on land for the purposes of the Kerala Revenue Recovery Act. A distinction is sought to be made between the treatment accorded to a liability to the Central Government, as revenue due on land, and the liabilities that would attract the definition of "public revenue due on land" , for the purpose of Revenue Recovery Act . It is stated that, while in the latter cases the charge under Section 3 would come into operation, a similar charge on the property, pursuant to the mere treatment of the liability as a public revenue due on land, would not arise in the former cases, unless and until a determination has been done in terms of Section 69(2) of the Revenue Recovery Act. The plea with regard to limitation which, according to the learned counsel for the appellant, was not considered by the learned Single Judge, is also reiterated before us.