IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 OP.No. 33609 of 2002(A) ----------------------- PETITIONER(S): --------------- SAJI THOMAS, EDATHATTIL HOUSE, MANAPPADAM, VADAKKANCHERY, ALATHUR, PALAKKAD DISTRICT. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, PALAKKAD. 2. TAHSILDAR (REVENUE RECOVERY), TALUK OFFICE, ALATHUR. 3. VILLAGE OFFICER, MANAPPADAM VILLAGE ALATHUR. 4. ASST.COMMISSIONER OF SALES TAX (ASSESSMENT), SPECIAL CIRCLE-III, ERNAKULAM. ADDL. R5. SIMI SURENDRAN, W/O.SURENDRAN AGED 38 YEARS, CHALIL HOUSE, KADAYIRIPPU PO, KUNNATHUNADU TALUK ERNAKULAM ADDL.R6. K.K.RAJAN, S/O.P.K.KARUNAKARAN VALANCHERIL HOUSE, PAZHAMTHOTTAM PO KUNNATHUNADU VILLAGE, ERNAKULAM DISTRICT. (IMPLEADED AS ADDL.R5 AND R6 AS PER ORDER DT 1.9.08 IN IA.11324/08) GOVERNMENT PLEADER MR.C.K.GOVINDAN FOR R1 TO 4 SRI.N.M.VARGHESE FOR ADDL.R5 & 6 SRI.ROY THOMAS FOR ADDL.R5 & 6 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.33609/02 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF PAGE NO.684 OF THE KERALA GAZATTE. P2 COPY OF INTERIM APPLICATION. P3 COPY OF ORDER OF R1. P4 COPY OF ORDER OF R1. P5 COPY OF NOTICE IN FORM NO.19. P6 COPY OF JUDGMENT DT 18.3.02. P7 COPY OF NOTICE ISSUED BY R1. P8 COPY OF STATEMENT BY CHINNAMMA. P9 COPY OF STATEMENT BY SAJI THOMAS P10 COPY OF STATEMENT BY JOBIN THOMAS P11 COPY OF PROCEEDINGS OF R1. P12 COPY OF WARRANT OF ARREST. RESPONDENTS' EXHIBITS: R2(A) COPY OF STATEMENT BY CHINNAMMA THOMAS R2(B)&(C) COPY OF ORDERS DT 11.8.08. R5(A) COPY OF ORDER DT 11.8.08. R5(B) COPY OF ORDER DT 11.8.08. // TRUE COPY // P.A. TO JUDGE K.M. JOSEPH, J. ```````````````````````````````````````````````````` O.P. No. 33609 OF 2002 A ```````````````````````````````````````````````````` Dated this the 26th day of February, 2009 J U D G M E N T Petitioner challenges Exts.P11 and P12. Petitioner is the son of one E.V.Thomas who was conducting an oil mill. Ext.P11 is an order by which the District Collector found that the defaulter is withholding from the payment of dues and hence a warrant of arrest is issued against him. Ext.P12 is the warrant of arrest. 2. Petitioner's father was an assessee under the KGST Act. Assessment was completed and recovery steps are taken to recover the tax due. Petitioner's father had disposed of his properties and stopped his business because he had no resource to clear off the said dues, it is inter alia stated. Petitioner's father approached this court against Exts.P3 and P4 which are orders passed by the District Collector. Ext.P6 is the judgment in the two original petitions filed by the father of the petitioner. Therein this court disposed of the original petition as follows. “I direct the District Collector to collect the OP.33609/02 : 2 : details of the property purchased by the petitioner's wife and children. He should also ascertain as to whether the property is purchased with their own source or with the help of other relatives other than the petitioner. If it is purchased with their own source, the same will not be treated as one constituting means for the petitioner for the purpose of Section 65 of the Act. The petitioner is directed to appear before the Collector for hearing along with his wife and children and the documents of title to the property, source for acquisition, etc., immediately on receipt of a copy of this judgment. The Collector will hear them in the matter. If it is seen that the property is purchased with the funds of the petitioner, the respondents are free to proceed against the property as if it belongs to the defaulter or in any case it constitutes means for the petitioner, so that action will lie against him under Section 65. The Collector shall pass orders in the matter within six weeks from the date of appearance of the parties before him. Interim stay will continue till a decision is taken by the Collector. It is made clear that the Collector is free to decide the matter under Section 65 of the Act in spite of the pendency of the Civil Suit in the matter. Original Petitions are disposed of as above.“ OP.33609/02 : 3 : It is thereafter that Ext.P11 is passed. 3. I heard learned counsel for the petitioner Mr.Harisankar V. Menon and learned Government Pleader. 4. A counter affidavit is filed by the 2nd respondent. Therein Exts.R2(a) and R2(b) are produced. Ext.R2(a) is a statement of the petitioner and his mother. The case of the petitioner is that the 1st respondent did not consider the various documents produced before him as well as the statement given by the wife of the defaulter. The petitioner relies on Exts.P8 to P10 statements. It is stated that these documents prove that the properties referred to by the respondents are acquired by the wife and children of the defaulter by their own funds and not through the funds of the defaulter. It is also stated that without considering Exts.P8 to P10 the order has been passed. Reply affidavit is filed to the counter affidavit. It is filed on 18.8.2008. There is no case that the statement produced as Ext.R2(a) was not given. No doubt, Ext.R2(a) is given subsequently. But it is to be noted that the petitioner was, according to the statement, only 17 years age at the time when the transaction is alleged to have taken place OP.33609/02 : 4 : and the other son was 21 years. Apparently, the Collector did not repose faith in the material. The statements as have been given and as are produced along with the counter affidavit of the 2nd respondent clearly advances the respondent's case and there may not be any useful purpose in remitting it back. In the light of this, there is no merit in the writ petition and it is dismissed. Sd/- (K.M.JOSEPH, JUDGE) aks OP.33609/02 : 5 : K.M. JOSEPH, J. O.P. No. 33609 OF 2002 A JUDGMENT 26TH FEBRUARY, 2009