IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 WP(C).No. 36933 of 2010(N) ---------------------------------- PETITIONER(S): ------------------- ALI HAJI, S/O.BAVA RAWTHER, BLOSSOM MANZIL, KUZHALMANNAM, PALAKKAD. BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENT(S): -------------------- 1. THE DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD. PIN-678 001. 2. THE TAHSILDAR, ALATHUR TALUK, TALUK OFFICE, ALATHUR, PALAKKAD. PIN-678 541. 3. K.I.BASHEER, S/O.K.K.IBRAHIM, AMBATTUPARAMBIL HOUSE, KUTHAMPILLY, THIRUVILWAMALA, THRISSUR DISTRICT. PIN-680 582. R1 & 2 BY GOVT.PLEADER SRI.MATHEW GEORG E VADEKKEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 36933/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AGREEMENT DATED 15/03/2003 EXECUTED BY BETWEEN THE PETITIONER AND 6TH RESPONDENT. P2: COPY OF THE NOTICE ISSUED UNDER SECTION 65 OF THE RR ACT BY THE DISTRICT COLLECTOR, PALAKKAD. P3: COPY OF THE JUDGMENT MADE IN WPC.NO.3131/2010 DATED 29/03/2010. P4: COPY OF THE NOTICE DATED 30/10/2010 ISSUED UNDER SECTION 65 OF THE RR ACT ISSUED BY THE DISTRICT COLLECTOR, PALAKKAD. P5: COPY OF THE ORDER DATED 30/11/2010 PASSED BY THE DISTRICT COLLECTOR, PALAKKAD. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.36933 of 2010-N ---------------------------------------- Dated this the 11th day of February, 2011. J U D G M E N T Challenge in this writ petition is against Ext.P5 order of the 1st respondent through which a warrant of arrest under Section 65 of the Kerala Revenue Recovery Act 1968 was issued against the petitioner. It is evident that the revenue recovery steps were initiated for realization of arrears of motor vehicle tax, amounting to Rs.5,37,336/-. 2. According to the petitioner the vehicle was transferred to the 3rd respondent by virtue of Ext.P1 agreement dt.15.3.2003 and the 3rd respondent was in possession of the vehicle thereafter. The liability for payment of motor vehicle tax was disputed on the basis that the petitioner was not in ownership and possession of the vehicle and that the 3rd respondent was submitting ‘G’ form intimations during the relevant periods. However, it is evident that the liability now stands confirmed by virtue of order issued by the Deputy Transport Commissioner in an W.P(C) No.36933 of 2010-N 2 appeal filed by the petitioner. With respect to the recovery steps, Ext.P2 notice was issued against the petitioner requiring him to show cause as to why the petitioner could not be committed to civil prison invoking provisions under Section 65 of the Act. 3. In Ext.P2, the 1st respondent alleged that the petitioner is willfully withholding payment of the arrears. On receipt of Ext.P2, the petitioner had filed W.P.(C) No.36403 of 2009 before this Court, mainly contending that the steps initiated during pendency of the appeal before the Deputy Transport Commissioner is not sustainable. However, during pendency of that writ petition, the Deputy Transport Commissioner had dismissed the appeal and consequently the writ petition was dismissed as infructuous. Eventhough a further writ petition was filed challenging the order of the Deputy Transport Commissioner as W.P(C) No.3131 of 2010, the same was withdrawn, reserving liberty to the petitioner to seek statutory remedy against the said order. Pursuant to dismissal of the writ petitions a fresh W.P(C) No.36933 of 2010-N 3 show cause notice was issued with respect to the proceedings initiated under Section 65, as evidenced from Ext.P4. In the said notice, the petitioner was required to appear in person before the 1st respondent on 15.12.2010 at 12.00 pm, in order to show cause why he should not be committed in civil prison. But the grievance expressed by the petitioner is that, even prior to the date fixed for appearance, the 1st respondent had issued Ext.P5 proceedings holding that the petitioner is willfully evading payment of amounts due, inspite that he has sources to raise money for discharging the liability. 4. Contention of the petitioner is that Ext.P5 was issued without affording sufficient opportunity to the petitioner and that the proceedings is finalized in an irregular manner without due compliance of the procedure contemplated under the statute, and also violation of principles of natural justice. 5. In the statement filed on behalf of the 1st respondent it is mentioned that, from a report submitted by W.P(C) No.36933 of 2010-N 4 the Tahsildar it was revealed that the petitioner is residing in a house which was purchased during the year 1991, in the name of his minor son. It was also reported that the petitioner is collecting rent with respect to two shop rooms belonging to the minor son and that he is conducting a STD Booth at Chandapura, Kuzhalmannam. The minor son at the relevant time was aged only two years and in all possibility the assets were acquired only by the petitioner in the name of his son. It was also revealed that the petitioner was in Gulf countries almost for 25 years and that he had given another property having an extent of 0.0121 hectors in favour of his minor son during the year 1991. On the basis of the above report a show cause notice was issued to the petitioner on 21.4.2008 and the petitioner appeared before the 1st respondent through his counsel on 3.5.2008 and submitted that he has no means and a suit filed by him as O.S.No.367 of 2007 is pending disposal before the Munsiff's Court, Palakkad. Thereafter on the basis of Ext.P2 show cause notice, the petitioner appeared through his counsel W.P(C) No.36933 of 2010-N 5 before the 1st respondent on 9.9.2009 and contended that the petitioner is not liable for payment of the amounts demanded since the vehicle was transferred and 'G' Forms were submitted by the transferee. However, adjournment was sought for and the matter was posted again on 16.9.2009. On that date also time was sought for producing further documents regarding ownership of the vehicle. The matter was postponed thereafter on different dates like 23.9.2009, 30.9.2009 and 7.10.2009. Ultimately the matter was again posted at the request of the counsel on 14.10.2009. Since the petitioner had failed to submit any objections regarding the steps initiated under Section 65 and since he had failed to appear in person before the 1st respondent, arrest warrant was issued in Form No.22 on 5.12.2009. But the Sub Inspector concerned had reported that the petitioner is out of station. It is further stated that, in the meanwhile W.P(C) No.36403 of 2009 was filed before this Court and the matter was pending consideration. After dismissal of the said writ petition as well as W.P(C) No.3131 W.P(C) No.36933 of 2010-N 6 of 2010, Ext.P5 order was issued. 6. On the factual matrix of the issue, as contended by the petitioner, I notice that there were lot of irregularities. It is evident that on the basis of the show cause notice issued, hearing was conducted on various dates till 14.10.2009. But thereafter the arrest warrant was issued without issuing any proceedings by the 1st respondent, finding that the petitioner is liable to be put to civil prison, since he had wilfully evaded payment of amounts inspite of having sufficient means. It is evident from Ext.P4 that subsequently a further chance was given to the petitioner by issuing Ext.P4 notice requiring him to appear in person on 15.12.2010. But even without waiting for the said date, Ext.P5 proceedings was seen issued on 30.11.2010. At the same time there is no evidence to show that the proceedings was being continued in any manner after 14.10.2009, the last date on which the hearing was conducted. 7. Going by provisions of Section 65, it is obligatory on the part of the 1st respondent to issue a show cause W.P(C) No.36933 of 2010-N 7 notice enumerating the reasons upon which the proceedings is proposed. The defaulter should be afforded with a reasonable opportunity to explain or to show cause as to why the proceedings should not be initiated or proceeded against. If the authority is not satisfied with such the objections, an order can be issued, which should contain a finding arrived by the authority regarding the wilful non- payment. Then only the authority can proceed with steps for arresting of the defaulter. In the case at hand it is evident that show cause notice was issued and hearing was conducted on various dates. But, without passing any order on the merits of the contentions if any raised, the warrant was issued. Further it is evident that the proceedings as evidenced from Ext.P5 was issued on a date prior to the posting of the matter stipulated through Ext.P4 notice. 8. Under the above mentioned circumstances, I am convinced that the entire procedure was done in an irregular manner. However, it is noticed that, inspite of various appearances made through counsel, the petitioner has not filed any objections regarding the proposal against W.P(C) No.36933 of 2010-N 8 invoking Section 65. Under the above circumstances, I am of the view that interest of justice will be served if the matter is remanded back to the 1st respondent for a fresh disposal and to take appropriate decision after affording an opportunity to the petitioner. 9. Therefore Ext.P5 is hereby quashed. The 1st respondent is directed to issue fresh notice to the petitioner, calling upon for objections if any, against the proposed action under Section 65 of the Act. A fresh decision shall be taken in the matter after affording an opportunity to the petitioner to file objections and also after affording an opportunity of personal hearing. The needful shall be done at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 10. Needless to say that the petitioner will be at liberty to raise challenges against the decision so taken by resorting the remedy provided under the statute. C.K.ABDUL REHIM, JUDGE W.P(C) No.36933 of 2010-N 9 ab