IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN SATURDAY, THE 20TH AUGUST 2011 / 29TH SRAVANA 1933 WP(C).No. 7942 of 2008(U) ------------------------- PETITIONER(S): --------------- MADHU KARTHA, S/O. NARAYANAN, BUSINESS MAN, AGED 48 YRS, THOTTAPPATT HOUSE, MUDAVOOR VILLAGE, NOW RESIDING AT SATHIVILASAM, PERUMBAVOOR KARA, PERUMBAVOOR, KUNNATHUNADU TALUK. BY ADV. SRI.P.R.VENKETESH SRIR.AZAD BABU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY TAHSILDAR (R.R.), TALUK OFFICE, KUNNATHUNADU, PERUMBAVOOR, ERNAKULAM DISTRICT. 3. EXECUTIVE ENGINEER, EDAMALAYAR, IRRIGATION PROJECT DIVISION, ANGAMALI-683 572, ERNAKULAM DIST. 4. ASST. EXECUTIVE ENGINEER, IIP SUB DIVISION NO.3, BHOOTHATHANKETTU, ERNAKULAM DIST. GOVERNMENT PLEADER SRI. BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 7942/2008 ------------------------------------------------------------------ EXT.P1 TRUE COPY OF LETTER DATED 29.6.2007 ISSUED BY THE 4TH RESPONDENT TO K.S. MOHANAN. EXT.P2 STRUE COPY OF LETTER DATED 8.1.2008 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT. EXT.P3 TRUE COPY OF THE REPLY DATED 14.1.2008 FROM THE PETITIONER. EXT.P4 TRUE COPY OF THE LETTER DATED 21.1.2008 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P5 TRUE COPY OF THE LETTER DATED 30.1.08 FROM THE PETITIONER TO THE 3RD RESPONDENT. EXT.P6 TRUE COPY OF NOTICE DATED 22.2.2008 UNDER SEC. 7 OF THE KERALA REVENUE RECOVERY ACT ISSUED TO THE PETITIONER. EXT.P7 TRUE COPY OF NOTICE DATED 22.2.2008 UNDER SEC. 34 OF THE KERALA REVENUE RECOVERY ACT ISSUED TO THE PETITIONER. EXT.P8 TRUE COPY OF LETTER FROM THE PETITIONER TO THE EXECUTIVE ENGINEER DATED 1.1.98. EXT.P9 TRUE COPY OF AUTHORIZATION DATED 21.3.90 GIVE BY MADHUKARTHA TO P.V. PAUL. [TRUE COPY] P.S TO JUDGE. AJ. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 7942 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 20th day of August, 2011. J U D G M E N T The 3rd respondent-Executive Engineer of the Edamalayar Irrigation Project Division, Public Works Department of the Government of Kerala, entrusted a Bulldozer with an engineering workshop by name “Decent Auto Engineering Works”, Perumbavoor, for repairs immediately. After the repair was over, that Bulldozer was not taken delivery of. Subsequently, that Bulldozer went missing. The respondents initiated proceedings against the petitioner who, according to the respondents , was the person in charge of the workshop, for recovery of the value of the said Bulldozer from the petitioner. They issued Exts. P6 and P7 revenue recovery notices for recovery of an amount of Rs. 6,50,000/- as value of the Bulldozer. That is under challenge in this writ petition. 2. Since my judgment essentially is based on the pleadings themselves, I am inclined to extract the pleadings in full in this judgment to obviate the possibility of missing any of the pleadings. The pleadings in the writ petition are as follows: “1. One K.K. Kuriakose of Parathuvayalil, Keettillam kara, Rayamangalam Village, Kunnathunad Taluk was the proprietor of an automobile engineering workshop by name 'Decent Auto Engineering Works,' Perumbavoor. The said workshop was given Government approval in his name. On his death, his legal heirs appointed his father-in-law P.V. Paul, Parathuvayalil as their power of attorney holder on 2.2.1983. On his death, Jainy Kuriakose, D/o. late K.K. Kuriakose was made as the power of attorney holder on 19.10.1994. The workshop is now having Government approval in the name of Smt. Jainy Kuriakose. The above facts are admitted in the letter dated 29.6.2007 issued by W.P(C) No. 7953 of 2008 -: 2 :- the 4th respondent to Shri. K.S. Mohanan, Advocate of the petitioner. True copy of the letter dated 29.6.2007 issued by the 4th respondent to advocate Sri. K.S. Mohanan is produced herewith and marked as Ext.P1. 2. Petitioner has worked as a helper of said P.V. Paul during the time he had acted as power of attorney holder of the owners of the said workshop. Petitioner has neither any ownership nor any say in the matter of running the workshop. It is true that a suit for dissolution of the partnership was filed by the widow and children of late K.K. Kuriakose against the petitioner before the Additional Sub Court, North Paravoor as O.S.No. 301/2000, and against the decree passed therein the petitioner has filed RFA No. 339/05 before this Hon'ble Court and the said appeal is still pending. 3. Petitioner received a notice dated 8.1.2008 from the 4th respondent alleging that a Bulldozer under the control of the Irrigation Department bearing No.D50, A-15, BEML, Sl. No. 8546 was entrusted with Decent Auto Engineering Works on 7.3.1995 for effecting repairs and that the said machinery has not been returned to the Department. It was further alleged that when the Asst. Engineer inspected the workshop on 18.2.2005, the machinery was found missing. Alleging that the petitioner is the owner of the said workshop, the 4th respondent demanded the petitioner to return the machinery within 7 days from the date of receipt of letter or to pay Rs.6,50,000/- being the estimated value of the machinery lost. In case of default, it was further notified that revenue recovery proceedings will be taken against the petitioner for realizing such loss. True copy of letter dated 8.1.2008 issued to the petitioner by the 4th respondent is produced herewith and marked as Ext.P2. 4. Upon receipt of Ext.P2 letter, the petitioner sent a reply dated 14.1.2008 stating that he is not the owner of the workshop and he is not liable for meeting the demands made in the letter. True copy of the reply dated 14.1.2008 sent by the petitioner to the 4th respondent is produced herewith and marked as Ext.P3. W.P(C) No. 7953 of 2008 -: 3 :- 5. A similar letter containing the very same allegations in verbatim was also issued by the 3rd respondent to the petitioner on 21.1.08. True copy of the letter dated 21.1.2008 issued by the 3rd respondent to the petitioner is produced herewith and marked as Ext.P4. Petitioner has replied Ext.P4 raising the same contentions as in Ext.P3 by his letter dated 30.1.2008. True copy of the letter dated 30.1.08 sent by the petitioner to the 3rd respondent is produced herewith and marked as Ext.P5. 6. Petitioner was under the bona fide belief that his explanation offered in Exts. P3 and P5 replies would have satisfied the respondents and no proceedings would be initiated against him. However, to his utter surprise, he was served with a notice by the 2nd respondent bearing the date of 22.2.2008 under Section 7 of the Kerala Revenue Recovery Act demanding payment of Rs. 6,50,000/-. True copy of the notice dated 22.2.2008 issued to the petitioner is produced herewith and marked as Ext.P6. Another notice bearing the same date was also issued by the 2nd respondent under Section 34 of the said Act to the petitioner regarding attachment of the lands belonging to the petitioner. True copy of the notice issued under Section 34 dated 22.2.08 to the petitioner is produced herewith and marked as Ext.P7. 7. It is respectfully submitted that the petitioner is not liable to meet the demands made by the respondents in Exts. P6 and P7 demand notices. Petitioner is not the owner or the person responsible for the conduct of the workshop in which the bulldozer is stated to have been entrusted with for effecting repairs. The petitioner cannot be made liable for the alleged loss of the said vehicle. 8. It is respectfully submitted that the revenue recovery proceedings is vitiated by lack of jurisdiction, fraud and colourable exercise of the statutory powers. The respondents cannot be a judge on its own cause. The purported unilateral determination that an amount of Rs. 6,50,000/- is due from the petitioner to the respondents is illegal. The proceedings initiated by the respondents is in W.P(C) No. 7953 of 2008 -: 4 :- violation of the principles of natural justice and fair play as well. 9. Under these circumstances, left with no other alternative remedy of a speedy and efficacious nature, the petitioner seeks to approach this Hon'ble Court under Article 226 of the Constitution of India on the following among other: GROUNDS A. The petitioner is neither an owner nor the person responsible for the conduct of the workshop, in which the government vehicle has been allegedly entrusted for repair. The petitioner cannot be made liable for the alleged disappearance of the vehicle. The respondents are estopped from proceeding against the petitioner in the light of Ext. P1 letter issued by the 4th respondent, which clearly admits that the ownership of the workshop is with some other person. B. Initiation of revenue recovery proceedings for the realization of the value of the lost vehicle is lacking in jurisdiction. The provisions of the Revenue Recovery Act cannot be invoked by the respondents for the realization of the amount. The proceedings are barred by limitation as well. C. Section 68 of the Revenue Recovery Act provides that all sums due to the Government on account of the quit rent or revenue other than public revenue due on land can be recovered under the provisions of the Act. It is specifically mentioned that all moneys due from any person to the Government which under a written agreement executed by such person are recoverable as arrears of public revenue due on land or land revenue and all specific pecuniary penalties to which such person renders himself liable under such agreement or contract can also be recovered. The Apex court has well as this Hon'ble Court has on many occasions interpreted the said provisions and has held that the written agreements contemplated under the said section are contracts W.P(C) No. 7953 of 2008 -: 5 :- contemplated under the Constitution of India. D. Under Section 71 of the said Act the Government can by notification in the Gazette declare in public interest that the provisions of this Act shall be applicable to the recovery of amounts due from any person and there upon all the provisions of the Act shall be applicable to such recovery. E. It is respectfully submitted that the demand now made against the petitioner will not come within the ambit of any public revenue demanded on land or other dues which can be recovered through machinery of the revenue recovery proceedings . It is also submitted that the respondents have not made any independent enquiry to assess the actual damage or loss sustained to the Government by the alleged disappearance of the machinery from the workshop. The Government cannot unilaterally determine the value of the lost machinery. There has to be necessarily an adjudication by a third party or the court to assess such damages. There is violation of the principle that no one can be a judge of his own cause. The quantification of the loss is not based upon any data. For these and other grounds to be urged at the time of hearing, it is most humbly prayed that this Hon'ble Court may be pleased to a) issue a writ of certiorari or any other appropriate writ, order or direction quashing Exts. P6 and P7 demand notices; b) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents not to proceed with the revenue recovery proceedings or other recovery proceedings pursuant to Exts. P6 and P7 demand notices; AND c) issue such other or further orders as this Hon'ble Court may deem just and fit in the circumstances of the case.” W.P(C) No. 7953 of 2008 -: 6 :- (Underlining supplied) 3. A counter affidavit has been filed as early as on 26.6.2008, which reads thus: “2. M/s. Decent Auto Engineering Works, Perumbavoor was an 'A'-Grade Government approved workshop owned by Sri. K.K. Kuriakose. After his death, his legal heirs executed a registered power of attorney in favour of Sri. P.V. Paul. Later, Sri. Madhukartha - the petitioner herein entered into a partnership agreement with the registered power of attorney holder Sri. P.V. Paul on 23.6.89 which continued till 30.4.97. On 7.3.95, one Bulldozer bearing No. D50A15 Sl.No. 8546, under the control of the Assistant Engineer, IIP Sn.2/3, Bhoothathankettu, was entrusted to the above workshop for carrying out repair works which was duly taken by the petitioner herein in his capacity as proprietor. On 13.10.97, the trial run was conducted after repair works were completed, thereafter on 22.10.97 the payment also was made. Later, the machinery was shifted to a yard at Kaduval (Sy.No. 134, Perumbavoor village) which was under the control of the petitioner. This yard was being used as the annex of the above workshop. There was a suggestion to transfer the same to any other needy institutions since the machinery was no longer required for the Idamalayar Irrigation Project due to delay in getting forest land for the construction of canal. This was the reason for keeping the machinery under the custody of a Government approved workshop even after the repair works were completed in the year 1997 and not the paucity of funds for taking delivery of the bulldozer. Thereafter on 18.2.05, Assistant Engineer, IIP Sn.2/3, Bhoothathankettu found that vehicle was missing from the yard at Kadavul and the same was brought to the notice of the petitioner but the petitioner did not responded to this matter. As such Assistant Engineer filed a complaint before the Sub Inspector of Police, Perumbavoor to enquire the missing of the machinery from the workshop. Consequently the Sub Inspector of Police has registered a case under Section 406 W.P(C) No. 7953 of 2008 -: 7 :- IPC with FIR No.822/06 on 7.11.06 and now the investigation is in progress. Further the Police authorities informed that the petitioner after obtaining anticipatory bail from Sessions Court, Ernakulam surrendered before the Judicial First Class Magistrate Court, Perumbavoor and got enlarged on bail. However, on 31.1.08, requisition was forwarded to the District Collector for initiating revenue recovery proceedings against the petitioner herein who was the proprietor of the workshop for recovering an amount of Rs. 6,50,000/- (upset value of the Bulldozer as on 1997 assessed by the Assistant Executive Engineer, Mechanical Sub Division, Perumbavoor) on account of arrears due to the non return of the Bulldozer owned by the Irrigation Department after the repair works. Consequently, the District Collector has initiated the revenue recovery proceedings against the petitioner. 3. Against which the petitioner filed W.P(C) No. 7942/08 before the Honourable High Court. As per the Advocate Commission report dated 30.8.99 there was a partnership agreement dated 23.6.89 between the petitioner and Mr. P.V. Paul who was then registered power of attorney holder which continued till 30.4.97. More over the petitioner has also opened a bank account at Catholic Syrian Bank, Perumbavoor as the proprietor of M/s. Decent Auto Engineering works, Perumbavoor. Further the petitioner received the bulldozer which was brought to repair in his capacity as the proprietor as per letter dated 22.10.96, the repair bill No. 45/97 of the bulldozer was also issued by the petitioner in his capacity as proprietor. In addition telephone number furnished in the letter head of the Decent Auto Engineering Works was that of the petitioner. From the above it is very clear that the petitioner is the person responsible for the conduct of workshop. As such the revenue recovery steps initiated by the respondents are proper and valid. So the Honourable Court may be pleased to dismiss the writ petition with costs.” (Underlining supplied) W.P(C) No. 7953 of 2008 -: 8 :- 4. When the matter came up on 16.8.2011, this Court expressed an opinion that in view of the averments in the counter affidavit, the interim stay is liable to be vacated. Counsel sought time to argue the matter and the case was adjourned to 17.8.2011. On 17.8.2011, counsel again sought adjournment to today. Today, the petitioner has filed a reply affidavit, which reads thus: “2. All the averments in the counter affidavit of the respondent save those that are admitted hereunder stand denied. I had never been a licensee at any point of time. As could be seen from Ext.P1, the licensees were originally K.K.Kuriakose and thereafter P.V. Paul was made power of attorney holder and subsequently on the death of P.V.Paul, Jainy Kuriakose. I had in fact, issued a letter dated 1.1.98 to the Executive Engineer, I.T.P. Division, Angmaly to take the Bulldozer, as I was given an authorization by P.V. Paul, the power of attorney holder. True copy of the said letter dated 1.1.98 and the authorization dated 21.3.1990 are produced herewith and marked as Ext.P8 and P9 respectively. 3. After the death of P.V. Paul, the workshop is under the Proprietorship and the licensee ship of Jainy Kuriakose and I was never having any interest at all, except that I was helping them for sometime and the relationship also became strained and a civil suit had been filed against each other. 4. The allegation that I had shifted the vehicle to Kaduval is absolutely false. Though an FIR was lodged, no charge sheet to my knowledge has been filed. Thus, as far as I was concerned, I was only acting at the request of P.V Paul and later by the subsequent licensee. The officials were playing hand in glove with Jainy Kuriakose and her children to wreak vengeance against me. There were even W.P(C) No. 7953 of 2008 -: 9 :- criminal cases between us. Therefore, the whole proceedings without even issuance of notice to them is totally vitiated. Therefore Exts. P6 and P7 are liable to be quashed and it is prayed accordingly.” (Underlining supplied) 5. I am of opinion that the pleadings themselves are sufficient to come to a definite conclusion that the petitioner has approached this Court with unclean hands. He has also suppressed relevant facts and materials from this Court. The petitioner has constituted the writ petition as if the petitioner had nothing to do with the workshop by name “Decent Auto and Engineering Works.” According to the pleadings in the writ petition, the petitioner was only helping Sri. P.V. Paul, who was running the workshop as a power of attorney holder of the owners of the workshop. In the counter affidavit, the respondents have specifically stated that the petitioner had entered into a partnership agreement with the registered power of attorney holder Sri. P.V. Paul on 23.6.2989, which continued till 30.4.1997. Admittedly, the Bulldozer was entrusted in the workshop in the year 1995. Although the petitioner has filed a reply affidavit today, the petitioner has not chosen to controvert that definite averment in the counter affidavit that he had entered into a partnership agreement with Sri. P.V. Paul to run the workshop. It is also stated in the counter affidavit W.P(C) No. 7953 of 2008 -: 10 :- that in a report of an advocate commissioner dated 30.8.1999, it was revealed that there was a partnership agreement dated 23.6.1989 between the petitioner and Sri. P.V.Paul. Although in the counter affidavit it is not stated as to in which proceedings the advocate commission report was filed, it is now admitted before me that that advocate commission report was filed in O.S.No. 301/2000 before the Additional Sub Court, North Paravoor referred to in the writ petition. Despite these specific averments in the counter affidavit, the petitioner did not deem it fit to make a clean breast of the real facts of the case in the reply affidavit. He continued to take the stand that he was not responsible for the running of the workshop and he was not liable. In the reply affidavit, he now takes a stand that the legal heirs of late K.K. Kuriakose are liable. But, he has not chosen to implead those persons on whom he alleges responsibility, in this writ petition. The petitioner very well knew that a criminal case was registered against the petitioner in respect of disappearance of the Bulldozer and that a FIR was filed, pursuant to which he obtained bail from the Judicial First Class Magistrate's Court, Perumbavoor, after obtaining anticipatory bail from the Sessions Court, Ernakulam. In the writ petition, the petitioner has not chosen to disclose those facts also, W.P(C) No. 7953 of 2008 -: 11 :- although the petitioner took bail admittedly prior to the filing of the writ petition. While disclaiming any liability in respect of the Bulldozer in question, the petitioner has chosen to produce Ext.P8 along with the reply affidavit, which is a letter dated 1.1.1998 issued to the 3rd respondent, wherein he has signed that letter as a proprietor. That letter reads thus: “The repair work related to Bulldozer No. D50 has been completed on 29.9.97. I therefore request you to take immediate steps to release the vehicle from the workshop. The vehicle is remaining idle occupying too much space. Which has already affected the routine work of the workshop itself. Hence I wish to inform that damage charges as per the existing rate may be given hereafter. Yours faithfully, Decent Auto Engineering Workshop Sd/- Proprietor” Underlining supplied) That letter itself is sufficient evidence to show that the entire averments of the petitioner in the writ petition are false and misleading. The petitioner has further produced along with the reply affidavit, Ext.P9 authorization issued by Sri. P.V. Paul on 21.3.1990 authorizing the petitioner to run the business at 'Decent Auto Engineering Works, Perumbavoor', which letter is dated 21-3.1990. W.P(C) No. 7953 of 2008 -: 12 :- 6. From the above facts, which are evident from the pleadings themselves, that too, from the reply affidavit, it is clear that everything what the petitioner has stated in the writ petition is false and misleading. With those false pleadings, the petitioner has filed this writ petition and obtained a stay. Counsel for the petitioner tried to extricate the petitioner from the difficult situation by trying to argue that these facts are clear from the exhibits produced along with the writ petition and therefore although those facts were not specifically pleaded in the writ petition, since the exhibits are part of the writ petition, it cannot be said that the petitioner has suppressed any material facts. He specifically referred to Exts. P3 and P5. But in Exts. P3 and P5 also, what he has stated is that he has worked in the workshop from 1989 to 1995 as a helper of Sri. P.V. Paul and that he has no connection whatsoever with the said workshop. That being so, the exhibits also show that the petitioner had taken a false contention throughout. 7. In view of the above findings, I have no hesitation to hold that the petitioner has approached this Court with unclean hands and filed this writ petition suppressing material facts and stating false facts. In the above circumstances, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner. W.P(C) No. 7953 of 2008 -: 13 :- Accordingly, the writ petition is dismissed. I am also of opinion that the petitioner is liable to be mulcted with exemplary costs for approaching this Court misrepresenting facts and taking this Court for a ride with false facts and suppressing material facts. Accordingly, the petitioner is directed to pay costs of Rs. 1 lakh to the Kerala Mediation Center. This shall be paid within one month from today. If the cost is not paid, it would be open to the Kerala Mediation Center to recover the same through the District Collector through the machinery of revenue recovery proceedings. The petitioner would also be liable for proceedings under the Contempt of Courts Act, if the cost is not paid, for which the Director of the Kerala Mediation Centre shall bring to the attention of this Court the fact that the cost is not paid. Sd/- S. Siri Jagan, Judge. Tds/