IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 WP(C).No. 18996 of 2008(J) -------------------------- PETITIONER: ------------ K.P.LUKHA, S/O.PATHROSE, AGED 60 YEARS, KUNNATHKALAYATHOLIL, MARANGATTUPALLY KARA, ELAYACKADU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.BIJU ABRAHAM RESPONDENTS: ------------- 1. THE SPECIAL DEPUTY TAHSILDAR (RR), OFFICE OF THE SPECIAL DEPUTY TAHSILDAR (RR) KSFE LTD., M.D. COMMERCIAL CENTRE, KOTTAYAM. 2. THE VILLAGE OFFICER, ELAYACKADU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 3. THE BRANCH MANAGER, KSFE LTD, KOTTAYAM BRANCH, KOTTAYAM. 4. H.R.HARIDAS, KAYAPURATH HOUSE, THIRUNALLOOR, CHERTHALA. BY ADV. SRI.K.S.HARIHARAPUTHRAN,SC,K.S.F.E. LTD FOR R1 & 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = = W.P.(C) No. 18996 OF 2008 J = = = = = = = = = = = = = = = = = Dated this the 27th day of August 2008 J U D G M E N T Petitioner is aggrieved by Ext. P1, by which an immovable property belonging to him has been attached for realisation of the dues to the Kerala State Financial Enterprises. 2. The ground on which Ext. P1 is impugned is that before Ext. P1 was issued, notice under Section 34 of the Revenue Recovery Act was not served on the petitioner, which according to the petitioner is a mandatory requirement of the Act. It is also his contention that if he was served with notice under Section 34 he would have had an opportunity to show cause against attachment and could have explained about the recovery that has already been effected and that the liability is much less than that is sought to be now enforced. 3. The KSFE on whose behalf a statement has been filed in this case, would resist the contention now raised mainly relying on Exts. W.P.(C) No. 18996 OF 2008 -2- R3(a) and (b). According to them, Ext. R3(a) notice under Section 34 was issued, but however, the same was returned by the Village Officer with the endorsement that the petitioner was not available within the Elakkad Village and that he was residing within Monippalli Village. It is their further case that since Ext. R3(a) has been returned by the Village Officer with the endorsement as above, the notice under Section 34 of the Revenue Recovery Act was again sent to the Village Officer, Monippalli who also returned the same with similar endorsement on Ext. R3(b). It is contended that twice notice was issued and that it was only on account of the fact that the petitioner was evading service, notice could not be served on him. 4. As already noticed, the only grievance in the writ petition is regarding the non-service of notice under Section 34 of the Revenue Recovery Act. The fact remains that on two occasions the 1st respondent has issued Exts. R3(a) and (b), but however these two notices could not be served only on account of the fact that the petitioner was not available. Since the grievance is only regarding non-service of notice under Section 34 and now that the notices which were issued to the petitioner as above have been produced along with the statement, a copy of which has been served on the W.P.(C) No. 18996 OF 2008 -3- counsel for the petitioner in this case, I direct that service on the counsel along with the statement filed in the writ petition will be treated as valid service under Section 34. 5. Counsel for the petitioner seeks time to file his objections to the notice and I direct that it will be open to the petitioner to file his objections to the notices now served on him within 3 weeks from today, in which case, the objection raised will be taken up and considered by the 1st respondent. 6. In the meantime, though the attachment effected as per Ext. P1 will remain in force, further action will not be continued by the respondents. 7. Petitioner complains that since the day the attachment has been effected on the immovable property, he is not permitted to take usufructus from the property. If there is any substance in what the petitioner now complains, I am of the view that the petitioner is justified in the same. It is directed that though the attachment will be maintained as above, petitioner will be free to take the usufructus from the property. 8. Further proceedings pursuant to Ext. P1 will be continued after orders are passed on the objections to be filed by the W.P.(C) No. 18996 OF 2008 -4- petitioner to Exts. R3(a) and (b) and it is clarified that in case objection is not filed as above, the respondents will be free to continue the proceedings. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE jan/-