IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 WP(C).No. 32607 of 2010(A) -------------------------------------- PETITIONER(S): ----------------------- M.D. BAIJU, S/O. DAMODARAN, RESIDING AT BAIJU BHAVAN, VAZHAPPALLY POST, CHANGANASSERY. BY SRI.K.JAYAKUMAR, SENIOR ADVOCATE, ADV. SRI.P.B.KRISHNAN, SMT.GEETHA P.MENON, SRI.P.M.NEELAKANDAN, SRI.P.B.SUBRAMANYAN. RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR, KOTTAYAM-686 001. 2. THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, KOTTAYAM-686 001. 3. THE TAHSILDAR (R.R.), KOTTAYAM-686 001. 4. THE ADDITIONAL TAHSILDAR, TALUK OFFICE, KOTTAYAM-686 001. 5. THE ASST. EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, KOTTAYAM-686 002. 6. THE TODDY WORKERS WELFARE FUND, KOTTAYAM-686 001. 7. C.K. SHANI, S/O. HUSSAIN, VAZHAYIL HOUSE, VELOOR POST, KOTTAYAM-686 501. R1 TO R5 BY GOVT. PLEADER MR.BIJOY CHANDRAN. R6 BY ADV. SRI.K.D.BABU, SC, KTWWFB. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.32607 of 2010 ------------------------------------------- Dated this the 27th day of October, 2010 J U D G M E N T ---------------------- Challenge in this writ petition is against steps initiated under the Kerala Revenue Recovery Act, 1968 (hereinafter for short the Act) to the extent it proceeds against property covered under Ext.P3 sale deed which is now proclaimed for sale through Ext.P9 notice. 2. Petitioner claims to be a bonafide purchaser of the property having an extent of 40.47 Ares comprised in R.Sy.No.596/19/1 of Nattakam village. The property in question was purchased from one Sri.Shibu Mathew by virtue of Ext.P3 sale deed. The said Sri.Shibu Mathew in turn had purchased the property from the 7th respondent. The 7th respondent in turn had purchased the property from one Sri.M.M.Ramesan. Ext.P1 and P2 are the prior title deeds evidencing the above transactions. The 7th respondent is a defaulter in payment of contributions due to the Toddy Workers Welfare Fund. The revenue recovery steps impugned in this writ petition was initiated for recovery of W.P.(C).32607/10-A -2- amounts due from the 7th respondent. 3. Contention of the petitioner is that the property in question is not liable to be proceeded against since the petitioner is the absolute owner in possession of the property. It is contended that the transfer of the property in favour of the petitioner will not be hit by restrictions imposed under Section 44 of the Act, because the property was transferred into the name of the petitioner much before initiation of proceedings under the Revenue Recovery Act, and also much before the arrears have become due from the 7th respondent. It is also contended that the 7th respondent was holding the property only for a short period of five weeks and the said period is falling much before the date of the orders of determination of liability with respect to payment of contributions. It is also stated in the writ petition that pursuant to the revenue recovery steps initiated, the mutation effected in favour of the petitioner in the revenue records was cancelled and an appeal filed by the petitioner against such action, under the provisions of the Transfer of Registry Rules, is pending disposal before the authority concerned. 4. From the facts and circumstances as enumerated W.P.(C).32607/10-A -3- above, I am of the opinion that the petitioner is raising a claim that he is a person having interest on the immovable property which is being attached pursuant to the revenue recovery steps initiated. Basically his contention seems to be that the property in question is not liable for the arrears of public revenue and that the property could not be proceeded against for recovery of the amounts defaulted by the 7th respondent. Section 46 of the Kerala Revenue Recovery Act provides an efficacious remedy in such circumstances to raise a claim seeking release of the attachment. If any such claim is submitted, the authorized officer is at an obligation to conduct a proper enquiry and to arrive at a decision as to whether such property is liable to be attached and proceeded against. 5. Under the above circumstances I am of the view that the petitioner can be relegated to seek remedies as provided under Section 46 before the 3rd respondent. If the petitioner submits any claim as contemplated under Section 46, before the 3rd respondent within a period of 2 weeks from the date of receipt of a copy of this Judgment, the same shall be considered and a decision shall be taken at the earliest possible, at any rate within a period of 2 months from the date of receipt of such W.P.(C).32607/10-A -4- claim, after affording an opportunity to the petitioner as well as to respondents 6 and 7. 6. According to the petitioner, the defaulter (7th respondent) had already furnished adequate security with respect to the amounts due and considering such security furnished by the defaulter the property in question need not be proceeded against. It is for the 3rd respondent to consider such contentions while deciding the question on the basis of the claim petition to be submitted. 7. In order to facilitate the petitioner to approach the 3rd respondent as directed above, and the 3rd respondent to take a final decision in the matter, further steps for sale and other proceeding with respect to the property covered under Ext.P3, which is proclaimed under Ext.P9 notice, shall be kept in abeyance for a period of 3 months from today. C.K.ABDUL REHIM, JUDGE. okb