IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 WP(C).No. 26680 of 2005(A) -------------------------- PETITIONER: -------------- M.A.ANZAR, AGED 33, S/O.ABDUL RAHIMAN, AMANGALAMPULLY HOUSE, KOOLIMUTTAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS: ----------------- 1. THE SALES TAX OFFICER, KODUNGALLUR. 2. THE TAHSILDAR, KODUNGALLUR TALUK OFFICE, THRISSUR DISTRICT. 3. THE DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR. R1 TO R3 BY SENIOR GOVERNMENT PLEADER , SRI.SUDHISH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26680 of 2005(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE INSOLVENCY PETITION NO.5/05 FILED BY THE PETITIONER BEFORE THE SUB COURT, IRINJALAKUDA DATED 20.07.2005. EXT.P2 : TRUE COPY OF THE WARRANT OF ARREST ISSUED AGAINST THE PETITIONER BY THE THIRD RESPONDENT DATED 05.08.2005. /TRUE COPY/ PA TO JUDGE P.R.RAMACHANDRA MENON,J - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 26680 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2011 JUDGMENT The petitioners have approached this Court with the following prayers: “i. to issue an appropriate writ, order or direction quashing Ext.P2 issued by the third respondent in the interest of justice. ii. to pass any such or further orders as the petitioner may seek and this Hon'ble court deem fit to grant.” 2. Taking note of the nature of the pleadings and prayers, the interim order of stay granted on 08.09.2005 was varied by this Court as per order dated 20.10.2005 which reads as follows: “Interim order of stay will continue for a period of 3 months on condition that the petitioner deposits at the rate of Rs.10,000/- per month payable on or before the 20th of every month commencing from November 2005.” 3. In view of the default pointed out by the petitioner with regard to the satisfaction of the instalment due on 20.11.2005, he was permitted to satisfy the same on 30.11.2005 WP(C) No.26680 of 2005 -:2:- as per order dated 21.11.2005, making it clear that further instalments shall be paid as directed in the order dated 20.10.2005 in I.A. No.16927 of 2005. When the matter came up for consideration before this Court on 13.02.2006, the petitioner was directed to file an affidavit as to the remittance made following the interim order. Later, taking note of the affidavit filed by the petitioner, it was made clear by this Court as per order dated 08.03.2006 that the petitioner admittedly failed to comply with the conditions imposed by this Court for having the benefit of the interim stay and as such, it was clarified that no interim order did exist any further. 4. A detailed counter affidavit dated 13.10.2006 has been filed on behalf of the respondents pointing out the relevant facts and figures. The conduct of the petitioner is revealed from paragraphs 4, 5 and 6 of the said counter affidavit, which are extracted below. “4. The 3rd respondent after conducting due enquiries through the Village Officer could gather that the petitioner is leading an affluent life and he is operating a concern by name Nanma Car Shop WP(C) No.26680 of 2005 -:3:- (conducting sales of used cars) and he is leading a comfortable life with all facilities. On receipt of the report from the Tahsildar, the District Collector initiated Section 65 proceedings under the Kerala Revenue Recovery Act and a show cause notice dated 03.06.2005 was issued to the petitioner. The petitioner thereupon appeared before the 3rd respondent. After hearing the petitioner, the District Collector being convinced that the petitioner in spite of having sufficient means is willfully and fraudulently withholding payments of the dues, proceeded to issue Ext.P2 order of arrest in exercise of the power vested in him under section 65 of the Kerala Revenue Recovery Act. The petitioner was served with the warrant of arrest on 25.08.2005 and he was produced before the 3rd respondent whereupon the petitioner agreed in writing to remit Rs.10,000/- and the balance within 10 days. Accordingly, he has remitted Rs.10,000/- on 25.08.2005 itself and he was released. 5. The petitioner thereafter filed IP No.5/2005 before the Sub Court, Irinjalakkuda solely with the view to defeat section 65 proceedings initiated against the petitioner. The petitioner cleverly suppressed various relevant facts in the writ petition. The plea that the petitioner has suffered severe financial loss and that section 65 proceedings initiated by the third respondent is without conducting enquiry or complying with the provisions, etc. are all false and baseless. Section 65 proceedings initiated by the 3rd respondent is absolutely within the jurisdiction and WP(C) No.26680 of 2005 -:4:- authority vested in him, that too after conducting proper and detailed enquiry through the Village Officer and obtaining report from the Tahsildar. We have complied with all the procedural formalities envisaged in sections 65 and 66 of the KRR Act and hence there is absolutely no irregularity or illegality in Ext.P2 to assail the same in a proceeding under article 226 of the Constitution of India. 6. In any view of the case, the petitioner himself having agreed to pay the balance amount within 10 days from 25.08.2005 after paying Rs.10,000/- ought not to have suppressed the said fact before this Hon'ble Court (1) The petitioner is a chronic defaulter who had failed to file any returns or cared to accept notices issued by the 1st respondent for assessment of tax legally due from him. The petitioner is consistently refused to accept the notices or to file any objections to be assessment and penalty proposals nor has he availed of any alternative remedy available to him under the KGST Act. As stated earlier the enquiry has revealed that the petitioner is running a lucrative business and he is living in comfortable circumstances and has sufficient means to pay off the sales tax arrears due from him. The attempt of the petitioner is only to wriggle out of the liabilities, which ought not to be countenanced by this Hon'ble Court.” The petitioner has not chosen to rebut the above averments by filing a reply affidavit. WP(C) No.26680 of 2005 -:5:- In the above circumstances, this Court does not find any ground to interfere in the matter, invoking the discretionary jurisdiction under Article 226 of the Constitution. Interference is declined and the Writ Petition is dismissed accordingly. P.R.RAMACHANDRA MENON, JUDGE ttb