IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 WP(C).No. 6747 of 2008(C) ------------------------- PETITIONER: ------------------- MOHANAN K.P., AGED 51 YEARS, S/O.K.S.PARAMESWARAN, KARICKAL HOUSE, MULANTHURUTHY, ERNAKULAM DISTRICT. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM. 3. THE SPECIAL TAHSILDAR (RR), KANAYANNUR TALUK, ERNAKULAM, KOCHI. 4. THE SALES TAX OFFICER, TRIPUNITHURA. BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 6747 OF 2008 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 10th day of December, 2010 JUDGMENT The petitioner, who is an assessee before the 4th respondent is stated as aggrieved of the coercive proceedings, particularly the under Section 65 of the Kerala Revenue Recovery Act, causing the petitioner to be arrested as ordered by the second respondent/District Collector, alleging non satisfaction of the amounts allegedly due from the petitioner. 2. The case of the petitioner is that, the petitioner started an SSI unit, which commenced its operation in the year 1980 and continued till March 1987, when it happened to be closed down because of the adverse circumstances prevailing the market and such other reasons. Ext. P1 is the Certificate of Registration as an SSI unit, which was engaged in the to the manufacturing and sale metal primers, wood primers, aluminium paints etc., The petitioner had sought for the benefit of exemption from the liability to pay tax and after considering the credentials of the petitioner, the unit was provided with exemption to the tune of ` 1,41,624/- as certified by the General Manager, District Industries Centre, Ernakulam, vide Ext. P2. While so, the petitioner was served with Ext. P3 notice dated 18.01.2008, W.P. (C) No. 6747 of 2008 2 issued by the second respondent, demanding a sum of ` 33,079/- stated as the arrears payable by the petitioner in respect of the assessment years 1985 - '86, 1986 - '87 and 1989 - '90. On receipt of the said notice, the petitioner submitted Ext. P4 reply to the second respondent on 30.01.2008, explaining the factual position and disputing the liability. However, without any regard to the explanation offered by the petitioner, Ext. P5 notice was issued on 05.02.2008, asking the petitioner to appear in person in connection with the steps proposed, vide Ext. P3. 3. The learned counsel for the petitioner submits that, the petitioner appeared before second respondent on 20.02.2008 and despite explaining the position and disputing the liability specifically with reference to Ext. P2 'exemption certificate' and the subsequent turn of events including closure of the unit in March 1987, the same was simply given a 'go-bye' by the second respondent, who issued Ext. P6 causing the petitioner to be arrested and detained in the Civil Prison, invoking the power power under Section 65 of the Kerala Revenue Recovery Act, which in turn is subjected to challenge in this Writ Petition. 4. The matter was admitted by this Court on 27.02.2008, also granting interim order, intercepting the coercive proceedings. No counter affidavit has been filed from the part of the respondents, controverting the W.P. (C) No. 6747 of 2008 3 facts and figures put forth by the petitioner and as such, this Court finds that there is considerable force in the submissions made on behalf of the petitioner as to the eligibility for exemption and as to the sequence of events. 5. The learned Government Pleader appearing for the respondents submits that, the petitioner has not chosen to produce the assessment orders and no proof has been produced with regard to the filing of Ext. P4 explanation. It is stated that the factual particulars as on date has to be ascertained. 6. On going through the contents of Ext. P6, the only reference made therein is to Ext. P3 notice dated 18.01.2008 and Ext. P5 notice dated 05.02.2008 asking the petitioner to appear in person for the hearing scheduled on 20.02.2008. Obviously no reference is made to Ext. P4. That apart, no material is referred to by the second respondent/District Collector, as to the basis for arriving at a finding that the petitioner was leading a 'luxurious life'. No report of the concerned Tahasilder or such other authorities is referred to for arriving at such inference. On what basis did the second respondent arrive at such a finding, causing the petitioner to be arrested, invoking the powers under Section 65 and 66 is not discernible from Ext. P6. W.P. (C) No. 6747 of 2008 4 7. In the above circumstances, this Court does not find any reason to sustain Ext. P6 issued by the second respondent and the same is set aside. The petitioner is permitted to file a detailed representation before the 4th respondent also producing a copy of the relevant documents including Ext. P1 and P2, within two weeks from the date of receipt of a copy this judgment; on which event, the 4th respondent shall consider the actual facts and circumstances and pass appropriate orders after giving an opportunity of hearing to the petitioner and also to the requisitioning authority. The proceedings as above shall be completed in accordance with law, as expeditiously as possible, at any rate , within two months, from the date of receipt of representation as aforesaid. All further coercive proceedings shall be subject to the decision to be rendered by the 4th respondent as above. The Writ Petition is disposed of . P. R. RAMACHANDRA MENON, JUDGE kmd