MAHALINGA BHATT Vs. STATE OF KERALA

JUDGEMENT

(1.) This is yet another instance where action purported to have been taken under the Kerala Rice and Paddy (Procurement by Levy) Order, 1966 and the Kerala Paddy and Rice Declaration and Requisitioning of Stocks) Order, 1966 has resulted in unnecessary inconvenience and has created a source of insecurity because of the hasty manner in which the officers empowered with extraordinary powers took action ignoring principle of natural justice.

(2.) The petitioner and his sons got divided by a registered partition deed dated 19-7-1961. Up to and inclusive of the Makarom crop in the year 1142, the amounts of paddy which the petitioner had to measure under the Kerala Rice and Paddy (Procurement by Levy) Order, 1966 (hereinafter referred to as the levy order) was based on the extent of the land that the petitioner obtained under the said partition deed namely 5.70 acres and that alone. According to counsel for the petitioner, this is the correct method to be adopted for the purpose of determining the quantum of paddy which can be demanded from the petitioner under the above said order. But for the Kanni crop of the year 1143, Ext. P1 notice dated 21-8-1967 was issued to the petitioner on the 28th of that month demanding from him 34.20 quintals of paddy on the basis that he is in possession of and is cultivating 12.94 acres the total of the extent that has been partitioned under the partition deed dated 19-7-1961 already referred to. He objected by Ext. P2. But this objection was rejected by order Ext. P3 dated 4 10 1967 by the Taluk Supply Officer. He appealed as evidenced by Ext. P4 on 27-10-1967 and also made an application for stay Ext. P5. While this matter was thus pending in appeal and before orders were passed either in appeal or on the stay petition 36.40 quintals of paddy were seized on the 11th November 1967. This is the version of the respondents on whose behalf a counter affidavit has been filed. The petitioner would have it that the amount of paddy seized on 11-11-1967 is the entire stock of the paddy that was available with the petitioner and amounted to 59 quintals of paddy. The questions to be determined in this case are whether there has been a correct and true determination of the amount of the paddy the petitioner had to measure under the Levy Order and whether the action for seizure of paddy under the Declaration and Requisitioning Order is justified.

(3.) The question arising under the levy order is fairly easy to resolve. A glance at the orders Exts. P3 and P7, P7 being the order on the appeal taken by the petitioner (Ext. P4) passed after the writ application was filed, indicates that matters which are not relevant weighed with the authorities incoming to the conclusion that the levy should be on the basis of the total extent of the paddy lands covered by the partition deed dated 19-7-1961. It is mentioned that the petitioner and his sons were living under the same roof, and they had a common mess and a common kitchen and had stock of paddy in the same place and that the petitioner cultivated the paddy lands allotted to his sons under the partition deed. These matters are not material for deciding the question of the quantum of paddy to be measured by the petitioner. It is not suggested that the partition deed is a sham document. In fact there is no reason to create a document which was not intended to take effect. On the other hand, it appears it was very much intended to take effect and the object was it appears, to avoid liabilities such as which can arise under the Levy Order. It is not suggested that such an object is illegal. It is well settled that all legal steps can be taken to avoid the incidents of tax. This principle must apply to cases of liabilities arising under provision such as those in the Levy Order. The partition deed must therefore stand. The question therefore is whether the petitioner can be said to have disposing power over the share of the paddy collected from the shares of the sons who obtained it under the partition deed. This court in its Full Bench ruling in State of Kerala & others v. Annam alias Thankamma and others reported in 1968 KLT 390 held that it is not sufficient that the cultivation was done by any particular person who is one of the sharers under the partition deed. But that person even if he cultivated, harvested and collected the entire paddy from the various sharers must also have the disposing power of that paddy which he collected from the sharers belonging to other persons. It is not possible to postulate that such is the case when each member in the partition deed is entitled to the paddy that was obtained from his share. It follows that the petitioner can only be liable for the quantum of paddy measurable by him with respect to 5.70 acres of paddy land which he obtained under the partition deed dated 19-7-1961. I therefore quash Exts. P3 and P7 orders and direct that fresh orders be passed by the Taluk Supply Officer in accordance with the principles laid down by the Full Bench of this court fixing the quantum of paddy measurable by the petitioner under the Levy Order.