IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).No. 34079 of 2007(F) -------------------------------------- PETITIONER: ------------------- M.P.AUGUSTINE, C.NO.3452, BLOCK NO.1, CELL 2, CENTRAL JAIL, KANNUR. BY ADV. SRI.M.RAMESH CHANDER. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVT., EXCISE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXCISE COMMISSIONER, (ERNAKULAM), OFFICE THE EXCISE COMMISSIONER, ERNAKULAM- 18. 3. THE DISTRICT COLLECTOR, ERNAKULAM. 4. THE SPECIAL TAHSILDAR (REVENUE RECOVERY) KOCHI – 21. 5. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), KOCHI – 21. R1 TO R4 BY GOVERNMENT PLEADER SRI. M.A. ASIF. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010, ALONG WITH W.P.(C). NO.4014 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34079/2007-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE. EXT.P.2: COPY OF THE NOTICE DTD. 18/07/2005. EXT.P.3: COPY OF THE ORDER IN W.P.(C).32499/05 DTD. 22/11/2005. EXT.P.4: COPY OF THE JUDGMENT IN W.P.(C)8178/07 DTD. 19/03/2007. EXT.P.5: COPY OF THE NOTICE DTD. 15/10/2007. EXT.P.6: COPY OF THE DOCUMENT. EXT.P.7: COPY OF THE DOCUMENT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 34079 of 2007 & 4014 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2010 J U D G M E N T These two cases are the fall out of the infamous Vypin Liquor Tragedy which took the lives of many and blinded many in 1982. In that tragedy which happened because of the action of the petitioner in W.P.(C) No.34079/2007 and others who supplied spurious liquor to consumers, several consumers died and several lost their eyesight. The petitioner in W.P.(C) No.34079/2007 was prosecuted and imprisoned for his role in the tragedy. Subsequently the question of payment of compensation to the victims of the tragedy arose. The Government was directed to pay compensation to the victims since the tragedy occurred because of the negligence of the licensee and the abkari officers. That question was considered by a Division Bench of this court in W.A. No.1184/1993. In that writ appeal, by judgment dated 02.07.2001, a Division Bench of this court W.P.(C)No. 34079 of 2007 & 4014 of 2008 -2- directed the Government to recover the compensation so paid/payable to victims, from the contractors and Excise officers who were responsible for the tragedy. Thereafter by Ext.P1, notice was issued to the petitioners for recovery of the amount by proceeding against the properties transferred by the petitioner in W.P.(C) No.34079/2007 to the petitioners in the other who are his daughters by invoking Section 44 (3) of the Kerala Revenue Recovery Act. The petitioner in W.P.(C) No.34079/2007 had by Exts.P2 & P3 documents dated 18.02.1985, bequeathed certain properties to the petitioners in W.P.(C) No.4014/2008. By Ext.P1 notice in both writ petitions, the Special Tahsildar (Revenue Recovery) directed the petitioner to show cause why those properties should not be proceeded against for recovery of the amounts as directed in W.A. No.1184/1993 by invoking Section 44 (3) of the Kerala Revenue Recovery Act. The petitioners challenge that notice in these writ petitions. W.P.(C)No. 34079 of 2007 & 4014 of 2008 -3- 2. First of all, the petitioners would contend that although Ext.P1 is only a show cause notice, a reading of the same would show that, the same is issued as directed by the Government. As is clear from Ext.P1 the Government has already decided that this property is liable to be proceeded against under Section 44 (3) of the Kerala Revenue Recovery Act and Ext.P1 is only in execution of that direction is the contention. Therefore according to the petitioners, there is no point in suffering an adjudication process before the Special Tahsildar in respect of that notice in so far as the result is a foregone conclusion. 3. The petitioners contend that, until the Division Bench passed judgment on 02.07.2001, directing recovery of the compensation amount from the Abkari contractors and Excise officers, the amount so directed to be recovered had not become due and therefore the petitioner in W.P.(C) No.34079/2007 was not a defaulter in respect of that property on 18.02.1985 when he bequeathed the same to the petitioners in W.P.(C) No.4014/2008. They would W.P.(C)No. 34079 of 2007 & 4014 of 2008 -4- further submit that, in 1985 nobody had any inkling that in 2001 this court would decide to recover the compensation amount from the petitioner in W.P.(C) No.34079/2007 and therefore there is no reason even to suspect that the transfer made on 18.02.1985 has been made with the intention to defeat or delay the recovery of any arrears in respect of which the petitioner in W.P.(C) No.34079/2007 is a defaulter. Therefore according to the petitioner, Section 44 (3) is not attracted to the facts of this case at all and therefore the properties covered by Exts.P2 & P3 cannot be proceeded against by invoking Section 44 (3) of the Kerala Revenue Recovery Act. The counsel for the petitioners further points out that, as an abkari contractor he did not have any dues as is evident from Ext.P8 produced in W.P.(C) No.13299/2009, (which is being separately heard and disposed of) wherein the Government themselves had absolved the petitioner in W.P.(C) No.34079/2007 from any liability in respect of his abkari license. W.P.(C)No. 34079 of 2007 & 4014 of 2008 -5- 4. A counter affidavit has been filed by the 4th respondent, in which the contention taken is that, the tragedy which gave rise to the claim for compensation to the victims arose in 1982 and therefore the compensation must be deemed to have become due with effect from that date and therefore the transfer made on 18.02.1985 comes clearly within the mischief of Section 44 (3). 5. I have considered the rival contentions in detail. Since the respondents have proceeded against the petitioners in the two writ petitions under Section 44 (3), I must consider the issues involved in accordance with the provisions of that Section, which reads thus: “Where a defaulter transfers immovable property to a near relative or for grossly inadequate consideration after public revenue due on any land from him has fallen in arrear, it shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear, and the Collector or the authorised officer may, subject to the order of a competent Court, proceed to recover such arrear of public revenue by attachment and sale of the property so transferred, as if such transfer has not taken place: Provided that, before proceeding to attach such property, the Collector or the authorised officer shall- W.P.(C)No. 34079 of 2007 & 4014 of 2008 -6- (i) give the defaulter an opportunity of being heard; and (ii) record his reasons therefor in writing.” 6. Going by the said Section, I am of opinion that the transfer of immovable property contemplated in that sub- section should be by a “defaulter” before that property can be proceeded against under Section 44 (3). Of course as pointed out by the learned Government Pleader, it is for the petitioners to prove that the transfer was not made with the intention to defeat or delay the recovery of arrears. But before the burden shifts to the petitioners, the respondents should first prove that as on the date of transfer of immovable property, the petitioner in W.P.(C) No.34079/2007 was a defaulter. At first blush the arguments of the learned Government Pleader would sound the attractive in the sense that it is only because of the tragedy which happened in 1982 the question of damage and compensation arose. But I am of opinion that even then the petitioner in W.P.(C) No.34079/2007 cannot be regarded as a defaulter as on the date of transfer of the W.P.(C)No. 34079 of 2007 & 4014 of 2008 -7- property. For the petitioner to become a defaulter there should be first a demand which he defaults to pay. Here at no point of time prior to 02.07.2001, when the Division Bench pronounced the judgment, the question of recovery of any amount from the petitioner in W.P.(C) No.34079/2007 arose. In fact by no stretch of imagination can it be assumed that as on 1985 he could have foreseen the possibility of recovery of the compensation from him and with the intention to defeat that possibility he has executed Exts.P2 & P3 gift deeds. The respondents have no case that the petitioner in W.P.(C) No.34079/2007 was a defaulter in respect of any other amount also in his capacity as an abkari contractor. That being so, I am satisfied that in respect of this compensation amount, the petitioner in W.P.(C) No.34079/2007 was not a defaulter coming within the purview of Section 44 (3) of the Kerala Revenue Recovery Act. That being so, those properties cannot be proceeded against for recovery of amounts which became due only with effect from 02.07.2001, when the Division W.P.(C)No. 34079 of 2007 & 4014 of 2008 -8- Bench directed the recovery of the amounts from the abkari contractors and the excise officers. Therefore Ext.P1 in W.P.(C) No.4014/2008 which is also Ext.P1 in other writ petition is hereby quashed. It is declared that for recovery of the amounts in question, the properties described in Exts.P2 & P3 in W.P.(C) No.4014/2008 cannot be proceeded against. However, it is open to the respondents to recover the same from the petitioner in W.P.(C) No.34079/2007 otherwise. These writ petitions are allowed. S. SIRI JAGAN JUDGE shg/