IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 OP.No. 29377 of 2001(V) ---------------------------------- PETITIONER: ------------------- THE NELLIAMPATHY TEA & PRODUCE COMPANY LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT PANAMPILLY NAGAR, COCHIN -36, REPRESENTED BY ITS COMPANY SECRETARY, MR. MANU.P. SAM. BY ADV.SRI.A.M.SHAFFIQUE, SRI.E.K.NANDAKUMAR, SMT.PRIYA MAHESH. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM. 3. THE DIVISIONAL FOREST OFFICER, NENMARA. 4. THE DISTRICT COLLECTOR, CIVIL STATION, ALLAPPUZHA. 5. THE DEPUTY TAHSILDAR (R.R), ALLAPUZHA DISTRICT. BY GOVERNMENT PLEADER SMT. T.B. REMANI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 29377/2001-V: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE NOTICE DTD. 24/09/2001, THE R.5. ON BEHALF OF THE R.4. ISSUED TO THE PETITIONER. EXT.P.2: COPY OF THE ORDER C.M.P. NO. 2406/90 IN O.P. NO. 1329/1990-G, DTD. 11/04/1990 , R4 TO THE PETITIONER. EXT.P.3: COPY OF THE ORDER DTD. 05/08/1990 PASSED BY THE DISTRICT COLLECTOR, PALGHAT TO THE PETITIONER. EXT.P.4: COPY OF THE JUDGMENT DTD. 31/05/1991 IN O.P. NO. 1329/90. EXT.P.5: COPY OF THE ORDER DTD. 15/11/1993 PASSED BY HONOURABLE SUPREME COURT, IN SLP NOS. 1329 & 1258/90. EXT.P.6: COPY OF THE JUDGMENT O.P. NO. 15134/00 DTD. 13/06/2000. EXT.P.7: COPY OF THE JUDGMENT IN W.A. NO. 1932/00 (D) DTD. 21/11/2000. RESPONDENT'S EXHIBITS: EXT.R1.A: COPY OF THE LETTER FROM THE DIVISIONAL FOREST OFFICER, NEMMARA DT. 18/02/1998. EXT.R1.B: COPY OF THE LETTER FROM THE DIVISIONAL FOREST OFFICER, NEMMARA DT. 31/01/2001. EXT.R1.C: COPY OF THE ACKNOWLEDGEMENT RECEIPT. //TRUE COPY// prv. P.R.RAMAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No.29377 of 2001-V ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 18th day of March, 2008 J U D G M E N T The petitioner is a company incorporated under the Companies Act, 1956. They owned plantation, principally planted with crops such as coffee, cardamom and tea etc. They admit that out of the total extend of land in their possession, sizable extend was purchased by registered document and some extend obtained by lease as per Lease Deed No.435/61 from the Government. In respect of the property purchased in 1943, it is stated that assignment of interests was in respect of permanent lease hold rights, i.e. for 99 years from 03/12/1946. The challenge made in this writ petition is against Revenue Recovery Notice under Section 7 of the Kerala Revenue Recovery Act, 1968, issued demanding Rs.7,08,662/-, Ext.P1 produced in the case. Prior thereto, no demand as such was made informing the petitioner as to how the amount was arrived at and on what account. But, according to the petitioner, on enquiry it was understood that the demand was made in respect of a dispute relating to the liability to pay amounts for removal of timber and firewood which had wind O.P.No.29377/2001-V -: 2 :- fallen during 1989. True, as regards the wind fallen trees are concerned there was dispute between the parties and the matter is governed by the judgment of this Court; in 1989, when some of the wind fallen trees were to be removed by the petitioner, he was refused permission whereupon he filed O.P.No.1329/1990. It is not in dispute that by virtue of the interim order passed in the said O.P, the petitioner was allowed to remove the trees by furnishing a bank guarantee representing the value of the trees to be determined by the Collector. Ext.P3 produced would show that the Collector had determined value based on the interim order so passed. The petitioner then furnished the bank guarantee for that amount and removed the goods. Thereafter, Ext.P4 judgment was rendered. It was rendered as early as on 31/05/1991 wherein this Court directed in the final judgment as follows:- “We are not inclined to direct maintenance of the Bank Guarantee. Though the petitioners have asked for a declaration that they have a right to the timber in question, we consider it appropriate to leave it to the parties to agitate the same in appropriate proceedings. Having regard to the nature of the proceedings which have been brought before us, we are not inclined to consider all these aspects and all these questions are left open. We therefore dispose of these writ petitions with only a direction to release the Bank O.P.No.29377/2001-V -: 3 :- Guarantee furnished for removal of timber without expressing any opinion on the merits of the right of the parties claimed in these original petitions.” 2. This Court did not chose to either maintain the Bank Guarantee or to act upon such determination to mould the relief in the final determination. On the other hand, the whole question was left open to be decided. Bank Guarantee was also released. Thus, the situation is brought back to the same position. As against Ext.P4 judgment, the State filed a Special Leave Petition before the Apex Court, which was also dismissed as evident by Ext.P5. Even thereafter when the Bank Guarantee was not returned, petitioner approached this Court by filing O.P.No.15134/2000. This Court vide Ext.P6 judgment held as follows:- It is clear from the aforesaid order of the Supreme Court that the Special Leave Petition has been dismissed and therefore the direction issued by this Court as aforesaid stands confirmed. In such circumstances none of the respondents can now withhold the bank guarantee directed to be released as per Ext.P2. The contention of the respondents that on the basis of Ext.P3 some other case has to be reopened cannot stand in the way of releasing the bank O.P.No.29377/2001-V -: 4 :- guarantee. Accordingly the third respondent is directed to inform the fourth respondent regarding release of the bank guarantee within two weeks.” 3. That judgment was also challenged by the State before the Division Bench (W.A.No.1932/2000). The Division Bench by Ext.P7 judgment dismissed the writ appeal since the Bank Guarantee which was directed to be released had already expired. That judgment also became final. Therefore, the short question that falls for consideration is whether in terms of Ext.P4 judgment there was any adjudication at the instance of the either parties. Since revenue recovery is an action initiated by the State, and which is challenged in the writ petition, the State has to justify the recovery proceedings to convince this Court that the amounts sought to be recovered, public revenue, due on land, due from the petitioner. In this case only the fifth respondent has filed the counter affidavit. Nothing is shown in the counter affidavit as to whether any proceedings adjudicating the disputes between the parties was made prior to the demand made under the Revenue Recovery Proceedings. The counter affidavit also does not refer to any provision of law to show that the amount sought to be recovered arises under specific statute. If there was any lease O.P.No.29377/2001-V -: 5 :- between the parties based on which the liability is fastened, necessarily, a copy of the lease agreement ought to be produced and placed reliance thereon in the counter affidavit, that is also not done. There is no order adjudicating the disputes between the parties. In these circumstances, straight-a-way Revenue Recovery Act cannot be put in motion. Therefore, the Revenue Recovery proceedings initiated is directed to be kept in abeyance. The petitioner shall be given, if the Government so advised to give notice, showing how the liability is fastened on him. The petitioner shall be given an opportunity to submit his reply and a personal hearing shall also be afforded. Thereafter, an adjudicated order shall be passed, and in case the liability is fastened, and if not paid within the period, they may proceed to recover the same in accordance with law. This is subject to the right in case it is adverse to the petitioner, necessarily, it is then his right to challenge the same before appropriate forum. P.R.RAMAN, Judge ms O.P.No.29377/2001-V -: 6 :- P.R.RAMAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No.29377 of 2001-V ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J U D G M E N T 18th March, 2008