IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 WP(C).No. 32147 of 2008(B) --------------------------------------------- PETITIONER(S): ---------------------- 1. CHINNAMMA THOMAS, W/O.LATE K.M.THOMAS, RESIDING AT T.C.5/1087, PEROORKADA, THIRUVANANTHAPURAM. 2. PRASAD THOMAS, S/O.K.M.THOMAS, RESIDING AT T.C.5/1087, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.P.A.AHAMMED SRI.LIJU.V.STEPHEN RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT, ROAD & BRIDGES, SOUTH CIRCLE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, CIVIL LINES BUILDING, PEROORKADA. 4. THE VILLAGE OFFICER, PEROORKADA VILLAGE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 32147 OF 2008 B -------------------------------------- Dated this the 24th November, 2008 JUDGMENT Petitioners challenge Ext.P1. Ext.P1 is a recovery proceedings under Section 33 of the Revenue Recovery Act. The first petitioner is the widow and the second petitioner is the son of one late K.M. Thomas who was a PWD Contractor. Apparently, according to the pleadings, the late husband of the first petitioner instituted a Suit for damages and the said Suit came to be dismissed on technical grounds. It is stated that another Suit is pending in respect of quantification of damages, stating that unless the damages is quantified, recovery cannot be made. The further contention taken by the learned counsel for petitioner is that under the Revenue Recovery Act, the petitioners cannot be proceeded against unless there is a demand raised on them. Reference is made to a decision of a Division Bench of this Court in Devassy v. Addl. Sales Tax Officer (1986 KLT 267). That was a case under the Kerala General Sales Tax WPC.32147/08 B 2 Act. The assessee had committed default. Recovery steps were taken against the legal representatives. The Division Bench, of course, took the view that demand notice must be served on the legal representatives. Learned Government Pleader, per contra, relies on a decision of a learned Single Judge of this Court in Janaki v. State of Kerala And Others (1976 KLT 182), wherein the learned Single Judge held as follows: “In law, a legal representative is not a different person from the deceased, but only continues the persona of the deceased. In this case, the arrears due from the deceased are sought to be recovered from his legal representative who continues the persona of the deceased. There is no flaw or infirmity in the proceedings thus started.” 2. Under the Revenue recovery Act, the legal representatives would be liable to the extent of the property inherited by them from the defaulter, going by the decision in Janaki v. State of Kerala And Others (1976 KLT 182). Going through the Judgment in OS No.1483/95 on the file of the WPC.32147/08 B 3 Principal Sub Court, Thiruvananthapuram, it does not appear to be a case where the Sub Court has decided the matter on technical grounds. The late husband of the first petitioner and the father of the second petitioner had indeed challenged the order terminating the contract at his risk and cost. Breach was attributed to the Government. The civil court after considering the matter, rejected the prayers, both in so far as it related to the challenge to the order, terminating the contract at the risk and cost and also for damages. Therefore, the learned counsel for the petitioners may not be correct in contending that a party to a contract cannot by itself decide on the question of breach. In this case, there is a decision by a competent civil court as to the question as to who committed the breach and in fact legality of the very order terminating the contract at the risk and cost of the contractor was the matter in issue. According to counsel for the petitioners, petitioners have already applied for impleading in the later Suit upon the death of the father. There is no case for the petitioners that they are not the legal representatives of late WPC.32147/08 B 4 K.M. Thomas. At any rate, I find that the petitioners have approached this Court making an averment that the earlier Suit was dismissed on technical grounds which was an wholly incorrect statement and I think that whatever may be the legal niceties involved, in the facts of this case, I need not extend the discretionary power under Article 226 and I decline jurisdiction under Article 226. However, I make it clear that I have not pronounced on the contentions in the Suit OS No.558/04 filed before the Sub Court, Thiruvananthapuram. The Writ Petition is dismissed, subject to the above observations. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge