IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 W.P(C).No. 5245 of 2008(Y) ---------------------------------- PETITIONER(S): -------------------- C. ANWAR, S/O. MEMI, PROPRIETOR, KCM WOOD CRAFTS, PAYSSAL, IRIKKUR, KANNUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KANNUR. 3. THE SALES TAX OFFICER, TALIPARAMBA. 4. THE TAHSILDAR, TALIPARAMBA. 5. KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. (SIDCO), POST BOX NO.4, KADAVANTHRA P.O., ERNAKULAM, KOCHI-20. BY ADVS. SRI.R.T.PRADEEP, SC FOR SIDCO FOR R5 SRI.V.K.SHAMSUDEEN, GOVERNMENT PLEADER FOR R1 TO R4. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2009. ALONG WITH COC NO.1812 OF 2008. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 5245 of 2008 A P P E N D I X EXHIBITS FOR THE PETITIONER :- EXT.P1 : COPY OF THE PROCEEDINGS DATED 15.3.2001 OF THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KANNUR. EXT.P2 : COPY OF COMMUNICATION DATED 31.3.2003 OF THE SENIOR MANAGER, KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION. EXT.P3 : COPY OF COMMUNICATION DATED 1.12.2003 OF THE 5TH RESPONDENT. EXT.P4 : COPY OF ORDER DATED 20.9.2002 ADDITIONAL SALES TAX OFFICER, TALIPARAMBA. EXT.P5 : COPY OF COMMUNICATION DATED 29.8.2003 ISSUED BY THE FOREST INDUSTRIES (TRAVANCORE). EXT.P6 : COPY OF PROCEEDINGS DATED 12.5.2005 OF THE 2ND RESPONDENT. EXT.P7 : COPY OF THE SHOW CAUSE NOTICE DATED 12.5.2005 ISSUED BY THE 2ND RESPONDENT. EXT.P8 : COPY OF OBJECTION DATED 28.5.2005 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P9 : COPY OF JUDGMENT DATED 22.8.2005 IN W.P.(C)NO.16757/2005 OF THIS HON`BLE COURT. EXT.P10: COPY OF ORDER DATED 29.7.2005 AND ARREST WARRANT ISSUED BY THE 2ND RESPONDENT. EXT.P11: COPY OF JUDGMENT DATED 22.10.2007 IN W.P.(C)NO.27842/2005 OF THIS HON`BLE COURT. EXT.P12: COPY OF ORDER DATED 28.1.2008 ISSUED BY THE 2ND RESPONDENT. EXHIBITS FOR THE RESPONDENTS : NIL. //TRUE COPY// P.A.TO JUDGE an. P.R.RAMACHANDRA MENON, J. --------------------------- W.P.(C) No.5245 OF 2008 -------------------------- Dated this the 8th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ The petitioner, a contractor, was awarded some construction works as given by SIDCO on sub-contract, pursuant to the work awarded to them by the Kerala Handicraft Development Corporation. The case of the petitioner is that the petitioner was being paid by the SIDCO, of course after effecting the necessary deductions from the amount payable to the petitioner towards the tax liability, though the SIDCO did not effect the necessary payment before the Government. It is also pointed out that quite a lot of litigations are pending before different authorities and also before this Court as to the course pursued by SIDCO and the authorities concerned. Since the SIDCO has already deducted the entire sale tax amounts from the bills of the petitioner and since the said amount has not been remitted before the department, a civil suit has been filed by the petitioner for realisation of the said amount from the W.P.(C) No.5245 OF 2008 2 SIDCO. 2. It is in the above background that the 2nd respondent issued Ext.P7 notice to the petitioner proposing to arrest him and detain in the civil prison as provided u/s.65 of the Kerala Revenue Recovery Act. On receipt of the said notice, the petitioner filed a detailed statement of objection as borne by Ext.P8. Since the petitioner apprehended arrest before considering the objections filed by him, he was constrained to file W.P.(C) No.16757/2005, which led to Ext.P9 judgment, whereby the 2nd respondent was directed to consider the objections, after giving an opportunity of hearing to the petitioner. Pursuant to Ext.P9 verdict, Ext.P10 order was passed by the 2nd respondent, whereby the stand already taken by the said respondent was reiterated. Obviously, Ext.P10 order does not refer to Ext.P8 statement of objections, which made the petitioner to contend that the said order was passed without considering the objections and hence contrary to the directions given by this Court in Ext.P9 judgment. In the said circumstances, the petitioner approached this Court by filing W.P.(C) No.5245 OF 2008 3 W.P.(C) No.27842/2005 leading to Ext.P11 judgment. 3. After going out through the rival contentions, this Court has clearly observed in paragraph 5 of Ext.P11, that there was failure on the part of the District Collector in exercising his jurisdiction legally and properly u/s.65 of the Revenue Recovery Act while passing the impugned order. It was observed that the District Collector went by the fact that there was default on the part of the petitioner in complying with the order to deposit the amount as a condition for the stay granted by this Court in W.P. (C) 16757/2005 which ultimately was disposed of by Ext.P9 judgment. This Court has also observed that major portion of the discussion in Ext.P10 seemed to be confined to the above aspect. Observing that the proceedings u/s.65 of the Revenue Recovery Act are dependent on the facts and ascertainment as to whether the petitioner has actually transferred any property within the time frame, whether he is in possession of means or property, whether he has wilfully defaulted in making payment, or has committed any act which can be taken note of, to find whether he is actually in possession of any properties, this Court W.P.(C) No.5245 OF 2008 4 directed the matter to be reconsidered, as the said aspects did not find any place in the order passed by the District Collector. 4. Pursuant to the above verdict, the 2nd respondent has now passed Ext.P12 order, whereby the contents of the earlier order (Ext.P10) spreading over 8 paragraphs have been reduced into a single paragraph declining interference and confirming the issuance of the arrest warrant, simply observing that, as per the report of the Tahsildar, Taliparamba the petitioner was wilfully evading the payment, particularly when he was leading a luxurious life. Here again, the 2nd respondent has not even referred to Ext.P8 statement of objections in the items stated as referred to by him. The only reference therein is to the Ext.P11 judgment and the notice issued to the petitioner regarding the hearing scheduled before passing the order. The petitioner has got a case that his establishment was closed down years back and that he did not receive any notice from the 2nd respondent at any point of time. The learned counsel for the petitioner submits that, even if the petitioner had not turned up, the 2nd respondent was bound to consider the matter as W.P.(C) No.5245 OF 2008 5 specifically directed by this Court vide Ext.P11 judgment, before arriving at a conclusion. 5. The counter affidavit filed by the respondents 2 to 4 pertains more to the liabilities to be discharged from the part of the petitioner towards the sales tax arrears. But for this, the only discussion is regarding the sequence of events which led to various proceedings filed before this Court. There is no material to prove that the impugned order was passed after considering the statement of objections, particularly when absolutely no reference is made to Ext.P8 objections filed from the part of the petitioner. In other words, the 2nd respondent appears to have taken things in a very casual manner while passing Ext.P12 order paying only scant regards to the specific observations made by this Court in Ext.P11 judgment which can't but be deprecated. 6. In the above facts and circumstances, the impugned order - Ext.P12 is hereby set aside. The 2nd respondent is directed to reconsider the matter with specific reference to Ext.P8 objections preferred by the petitioner and appreciating W.P.(C) No.5245 OF 2008 6 each point as required to be dealt with, vide para 5 of Ext.P11 judgment passed by this Court. The above exercise shall be pursued and finalized as expeditiously as possible and at any rate, within one month from the date of receipt of a copy of this judgment. Considering the persuasive submissions made by the learned Government Pleader, this Court refrains from ordering cost against the 2nd respondent. The writ petition is disposed of as above. P.R.RAMACHANDRA MENON, JUDGE an.