IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 WP(C).No. 18716 of 2008(C) -------------------------- PETITIONER(S): --------------- 1. P.JANARDHANAN PILLAI, S/O.K.PADMANABHA PILLAI, AGED 64 YEARS, RESIDING AT PRIYAM, M.K.A-121, MUNDAKKAL WEST, KOLLAM 691 001. 2. M/S.AUTO WAYS, H.N.C. COMPOUND, MUNDAKKAL WEST, KOLLAM, REP. BY JANARDHANAN PILLAI PRIYAM M.K.A. 121, MUNDAKKAL WEST, KOLLAM-691001. BY ADV. SRI.V.JAYAPRADEEP RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP, BY THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, DEPARTMENT OF HARBOUR ENGINEERING, THIRUVANANTHAPURAM, PIN-695 009. 3. THE REGISTRAR, CO-OPERATIVE DEPT. THIRUVANANTHAPURAM. 4. THE DISTRICT COLLECTOR, KOLLAM. 5. THE TAHSILDAR (RR), KOLLAM. 6. THE VILLAGE OFFICER, MUNDAKKAL, KOLLAM. 7. THE ENGINEERING AND SKILLED WORKERS LABOUR CONTRACTORS CO-OPERATIVE SOCIETY LTD., Q.418, REP. BY ITS XSECRETARY, SREENIVASAN, RESIDING AT SREEJA BHAVANAM, PUTHUVAL PURAYIDAM RIFFLE COLONY, BAACH, KOLLAM. BY GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 18716/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE LETTER GIVEN TO THE DISTRICT COLLECTOR, KOLLAM DATED 30.8.06 EXT.P2 : COPY OF THE SALE NOTICE NO.D4-3871/04 OF THE 5TH RESPONDENT RESPONDENT'S EXHIBITS: EXT.R2(a) : COPY OF LETTER NO.HM 5682/2002 DATED 22.9.2004 OF THE CO- OPERATIVE JOINT REGISTRAR (GENERAL) KOLLAM. //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 18716 OF 2008 -------------------------- Dated this the 3rd day of November, 2011 J U D G M E N T Ext.P2 sale proclamation issued by the 5th respondent under section 49(2) of the Kerala Revenue Recovery Act, 1968 (hereinafter referred to as 'the Act' for short) proposing to sell an item of immovable property belonging to the first petitioner by public auction on 26.6.2008 is under challenge in this writ petition. By that notice, the first petitioner was informed that if the sum of Rs.1,04,810/- with future interest is not paid, the property described therein will be brought to sale and sold on 26.6.2008. The first petitioner challenges Ext.P2 inter alia on the ground that the liability sought to be recovered is that of the seventh respondent co-operative society and though the first petitioner was a member of the Board of Directors of the seventh respondent co-operative society and its President, in the absence of an order of surcharge or an adjudication by the competent authority under section 69 of the Act, no steps can be taken to recover any amount from him. 2. The stand taken in the counter affidavit filed on behalf WPC No.18716/2008 2 of the second respondent is that the sum of Rs.1,04,810/- was due from the seventh respondent society, that it failed to remit the said amount, that thereupon the first petitioner and other members of the managing committee of the seventh respondent society were proceeded against to realise the amount. It is also stated that one among the Directors of the society has remitted the sum of Rs.25,000/- and the balance amount is still due from the seventh respondent society. It is also stated that as the seventh respondent is a society, the amount due has to be realised from the members of the society who are responsible for the loss caused by the seventh respondent society. 3. The respondents have no case that the first petitioner or any other member of the Board of Directors of the seventh respondent society have been held in surcharge proceedings initiated under section 68 of the Act or under an award passed by the Arbitrator on a claim petition filed by the seventh respondent society. Apart from the fact that the first petitioner was a member of the Board of Directors of the seventh respondent society, the respondents have no case that it was because of the WPC No.18716/2008 3 negligence or misconduct of the first petitioner that the seventh respondent society failed to execute the work awarded to it or to discharge its liability. In the absence of any case for the respondents that the petitioners were surcharged for the said sum and are liable to pay the amount demanded in Ext.P2 sale proclamation, I am of the opinion that the proceedings initiated against them cannot be sustained. I accordingly allow the writ petition, set aside Ext.P2 sale proclamation and declare that the petitioners cannot be proceeded against for realisation of the amounts, if any, due from the seventh respondent society to the Harbour Engineering Department. P.N.RAVINDRAN, (JUDGE) vps WPC No.18716/2008 4