IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 34242 of 2006(B) -------------------------- PETITIONER(S): --------------- K.ANANDAN, AGED 47 YEARS, S/O.LATE KUNJURAMAN, KAIMALAZHIKATHU VEEDU, ENATHU, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, PATHANAMTHITTA. 4. THE TAHSILDAR, ADOOR. 5. THE SECRETARY, KATTAPPANA BLOCK PANCHAYATH, KATTAPPANA, IDUKKI DISTRICT. GOVERNMENT PLEADER SRI. VARGHESE C. KURIAKOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2009, ALONG WITH WPC NO. 33943 OF 2007 THE COURT ON THE SAMD DAY DELIVERED THE FOLLOWING: CR P.R.RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) NO. 34242 OF 2006 & 33943 OF 2007 ------------------------------------------------------- Dated this the 28th day of July, 2009 J U D G M E N T The issues involved in both these cases are closely interconnected and hence dealt with together. The grievance projected by the petitioner in the former case is against the coercive steps taken by the respondents for realisation of huge amounts from him stating that, pursuant to the default of the petitioner in completing the works awarded to him, the same had to be re-scheduled and re allotted at the cost of the petitioner, in view of the loss to the 5th respondent/Block Panchayat. The case of the said petitioner is that, the termination of the contract itself is wrong; particularly when cancellation of the work order vide Ext.P2 was without any prior notice and hence in violation of Rule 4 of the Kerala Panchayat Raj (Contract) Rules, 1996. It is also contended that, no coercive proceedings will lie, since there is no quantification of the liability by issuing any notice to the petitioner giving an opportunity of hearing and that the liability has been fixed unilaterally by the Government. 2. WP(C) No. 33943/2007 has been filed by the secured creditor against the lethargy of the authorities under the Government in taking WPC NO.34242/2006 & 33943/2007 2 proper steps to implement Ext.P5 order passed by the District Magistrate under Section 14 of the SARFAESI Act, for realisation of the amount due from the 6th respondent therein, who is none other than the petitioner in the former case. The reason for the alleged inaction, as pointed out by the second respondent in the counter affidavit is that, no further act could be pursued in view of the steps being taken against the 6th respondent for realisation of the amount mainly due to the 5th respondent (Block Panchayat) in WP(C) No. 34242/2006 and under other heads. It is also pointed out that, the said liability to the Block Panchayat; the amounts due to the Toddy Workers' Welfare Fund and the amount liable to be paid in a Criminal case involving the offence under Section 138 of the Negotiable Instruments Act will have to be satisfied first, in view of the 'prior charge' as provided under Section 3 of the Kerala Revenue Recovery Act and in the said circumstance, the claim put forth by the petitioner in WP(C) No. 33943/2007 (Secured creditor) stands far behind in the queue. 3. With regard to the sequence of events, it is to be noted that the petitioner in WP(C) No.34242/2006 was awarded a 'work contract' in connection with the construction of some culverts in the concerned Panchayat, utilizing the funds provided by the NABARD and also partly contributed by the Block Panchayat; pursuant to which, an agreement WPC NO.34242/2006 & 33943/2007 3 dated 29.06.2000 [stated as produced as R5(g) in the counter affidavit of the Panchayat] was executed. Subsequently, the said petitioner could not complete the work due to many a reason, when he preferred Ext.P1 representation pointing out the various hurdles and the reasons for the delay. After several notices stated as issued by the 5th respondent/Block Panchayat, the work was cancelled and the agreement was terminated as per Ext.P2 dated 30.10.2003. Thereafter the work was reallotted and got implemented by some other means; under which circumstance, the 5th respondent/Block Panchayat proceeded to recover the alleged loss from the petitioner, placing reliance on 'Clause 12' of the Agreement dated 29.06.2000, wherein it was stipulated that, such re-allotment of the work on failure of the contractor, would be at the latter's cost and risk. 4. In the course of the above proceedings, Ext.P3 and P4 sale notice and attachment notice were issued under the relevant provisions of the Kerala Revenue Recovery Act, when the petitioner in WP(C) No.34242/2006 approached the second respondent by filing Ext.P5 representation. Similar representations were filed before the District Collector, Tahsildar and also before the 5th respondent/Panchayat as borne by Ext.P6, P7 and P8 respectively. According to the said petitioner/contractor, absolutely no amount is liable to be paid by him to the WPC NO.34242/2006 & 33943/2007 4 Block Panchayat and that, amounts are actually due to him in connection with work done. The termination of the work as well as the coercive steps for realisation of the alleged liability are subjected to challenge, referring to non issuance of any notice as contemplated under Rule 4 of the Kerala Panchayati Raj (Contract) Rules, 1996 and also for want of quantification of the liability before execution proceedings are pursued under the Kerala Revenue Recovery Act. 5. With regard to the case of the petitioner in WP(C) No.33943/2007, the 6th respondent therein (who is the petitioner in the other Writ Petition) had availed a 'housing loan', pursuant to the application dated 30.11.2001 and the agreement dated 02.03.2002; whereby a sum of Rs.25,00,000/- was given to him, upon creating security interest over the property in question. However, the borrower was not at all eager to discharge the liability by remitting the instalments on time; under which circumstance, the secured creditor had no other alternative but to pursue further steps under the SARFAESI Act, after declaring the account as 'NPA'. Ext.P1 is the notice issued under Section 13(2), which was served upon the borrower, as borne by Ext.P2 postal acknowledgment card. Pursuant to Ext.P3 application preferred under Section 14 of the Act, the District Magistrate passed Ext.P4 order, providing necessary assistance to WPC NO.34242/2006 & 33943/2007 5 take physical possession of the property, authorising the concerned officers to take consequential steps. However, there occurred a mistake in Ext.P3 application, in so far as the actual extent of land having 13.86 'ares' was wrongly described as 13.86 'cents'; which accordingly was got corrected vide Ext.P5 issued by the District Magistrate. Despite the issuance of the said specific order, the concerned respondent did not pursue any further steps to give effect to Ext.P5 which hence is sought to be redressed in the said Writ Petition. 6. The second respondent in WP(C) 33943/2007 has already pointed out that further steps could not be pursued in view of the Revenue Recovery proceedings being pursued against the 6th respondent, in respect of the liability due to the Block Panchayat and some other dues which are stated as having 'priority' over the amounts due to the petitioner/secured creditor and hence that the prayers are not liable to be granted. It is also pointed out that, since the petitioner has not chosen to implead the 'defacto' complainant in the cheque case, (where some amount had been ordered as 'fine' which is also sought to be recovered by the Revenue Recovery steps), the Writ Petition is not maintainable. 7. The counter affidavit stated as filed by the 5th respondent/Block Panchayat in WP(C) 34242/2006 does not form part of the records and it is WPC NO.34242/2006 & 33943/2007 6 not available in the registry as well, as confirmed therefrom. However, the learned Government Pleader made available a copy of the same for perusal of the Court, which hence is accepted and relied upon, as not opposed from the other side. The main contention raised by the 5th respondent as to the service of notice, though sought to be rebutted from the part of the petitioner, appears to be correct and sustainable in so far as Ext.R5(k) series of notice reveal that many an opportunity was given to the petitioner to substantiate his version, particularly as to the measurement and other circumstances. The notice dated 30.11.2002 at page No. 4 of Ext.R5(k) sent to the petitioner by registered post clearly stipulates that, if the petitioner did not turn up as specified, the work already allotted to him would be cancelled and that it will be reallotted at his cost and risk. This being the position, the averments raised by the petitioner alleging contravention of Rule 4 of the Kerala Panchayat Raj (Conract) Rules, 1996 is quite contrary to the actual facts and figures and it has to be held that Ext.P2 cancellation was made only after serving proper notice as contemplated under the relevant provisions of law, though the actual cancellation was brought into effect only much later. 8. The learned Counsel for the petitioner in WP(C) 34242/2006 submits that, the Rules specifically authorise the 'President' to have WPC NO.34242/2006 & 33943/2007 7 pursued any action; whereas Ext.P2 has been issued only by the 'Secretary' who is stated as not competent in this regard. The Rule only stipulates that the responsibility as contemplated therein to take further steps will stand vested upon the 'President'; which cannot mean that the President himself will have to take the necessary steps to cancel the work. On the other hand, Ext.P2 letter of cancellation clearly shows that, it was issued by the Secretary, pursuant to the 'resolution No. 2' dated 31.12.2002 of the Block Panchayat Committee. In other words, the Secretary only conveyed the decision taken by the Committee vide Ext.P2 and he did not exercise any power on his own. This being the position, the challenge raised against Ext.P2 does not hold any water at all. 9. However, coming to the sustainability of the steps taken by the concerned authority under the Kerala Revenue Recovery Act, it is to be noted that the alleged liability of the petitioner is brought to light for the first time, only as per Ext.P3 and P4 notices issued under the Kerala Revenue Recovery Act and never before. The above 5th respondent does not have a case that the petitioner was given an opportunity of hearing before quantifying the liability. Even going one step further, it is pointed out in the counter affidavit filed by the 5th respondent that the actual liability shown in Ext.P3 and P4 as Rs.12,15,284/- plus interest is only a 'mistake' and that WPC NO.34242/2006 & 33943/2007 8 the actual liability is Rs.21,15,284/-; however conceding in paragraph 7 that, as per the final measurement, an amount of Rs.2,25,823/- is due to the petitioner. 10. It is settled that, the execution steps can only be in respect of a liability quantified in a proper manner, unless the liability is admitted. It is the specific case of the petitioner in WP(C) 34242/2006 that, he does not owe any amount to the 5th respondent and that it is only the 5th respondent who actually owes amounts to him (which stands more or less conceded in paragraph 7 of the counter affidavit filed by the 5th respondent) but for the liability allegedly resulted because of the lapses on the part of the petitioner. This being the position, there is absolutely no rationale in proceeding with the Revenue Recovery steps before fixing the liability and as such, the 5th respondent is very much liable to quantify the same, after giving an opportunity of hearing to the petitioner. In the said circumstance, Ext.P3 and P4 cannot have any valid existence and they are hereby set aside. This is without prejudice to the right of the 5th respondent to quantify the alleged liability of the petitioner by issuing a notice to him and thus after giving an opportunity of hearing in this regard. 11. With regard to the issue involved in WP(C) 33943/2007, the crucial question to be considered is whether the liability to the 5th WPC NO.34242/2006 & 33943/2007 9 respondent/Block Panchayat can be regarded as having any 'priority' by virtue of Section 3 of the Kerala Revenue Recovery Act, so as to defeat the rights and liberties of the petitioner therein. Learned Government Pleader, supported by the learned counsel for the 6th respondent (petitioner in the other case) submits that, Section 3 of the Kerala Revenue Recovery Act is very much applicable to the case in hand. Besides placing reliance on the Kerala Panchayath Raj Act, the learned counsel for the 6th respondent also places reliance on the decision rendered by the Division Bench of this Court in Suresh Vs. Executive Officer [1995 (2) KLT 75]. The submissions made in this regard are strongly rebutted by the learned counsel for the secured creditor, contending that none of the above provisions is having any scope and application with respect to the case in hand. It is also pointed out that, the decision in Suresh Vs. Executive Officer [1995 (2) KLT 75] was distinguished by this Court in Thalavoor Grama Panchayat Vs. Salim [2004 (3) KLT 835], where the decision rendered in Peravoor Grama Panchayat Vs. Rafi [2004 (2) KLT 1115] was referred to and followed, holding that such priority cannot be given in respect of the amount to be recovered on the basis of any agreement with the local authorities. 12. Section 3 of the Kerala Revenue Recovery Act reads as WPC NO.34242/2006 & 33943/2007 10 follows:- Sec. 3:- Charge and security for Public revenue:- The public revenue due on any land shall be the first charge on that land, the buildings upon it and on the produce thereof. The term 'Public Revenue due on land' as appearing under Section 3 is specifically defined under Section 2(j) of the Act which is as follows:- Sec. 2(j): “public revenue due on land” means the land revenue charged on the land and includes all other taxes, fees and cesses on land whether charged on land or not, and all cesses or other dues payable to the Government on account of water used for purposes of irrigation. The terminology used in the above provisions makes it crystal-clear that, the amounts sought to be realised from the 6th respondent (stated as due in respect of the loss caused to the Block Panchayat pursuant to clause 12 of the R5(h) agreement; the amounts stated as due to the Toddy Workers' Welfare Fund or the amount stated as to be realised by way of 'fine' in connection with the dishonour of the Cheque issued by the said respondent and forming the subject matter of a case filed before the concerned Magistrate's Court under Section 138 of the Negotiable Instruments Act) do not have the colour and characteristic so as to make it “public revenue due on land” as defined under Section 2(j) of the Act. 13. Incidentally, it is also to be noted that, Section 71 of the Kerala Revenue Recovery Act enables the Government to declare the Act as WPC NO.34242/2006 & 33943/2007 11 applicable to any institution in public interest and once the relevant notification is issued in the Gazette in this regard, the amount due to such institution can be realised by applying the Act and procedure as being made applicable in the case of the realisation of the 'public revenue due on land'. In other words, merely by issuance of a notification under Section 71, it will not change the status of the dues payable to such institution as “public revenue due on land”. The scope and effect of the notification is only such that, the procedure prescribed for recovery of the 'public revenue due on land', making use of the tooth and nail provided under the Kerala Revenue Recovery Act, can be made use of, in the other case as well. 14. With regard to the reliance placed on the Kerala Pachayat Raj Act, it is to be noted that, the scope and application stand on a different pedestal. Section 210 which provides for recovery of Tax, Cess etc. stipulates as follows:- 210. Recovery of arrears of tax, cess etc.- Any arrear of cess, rate, surcharge or tax imposed or fees levied under this Act shall be recoverable as an arrear of public revenue under the law relating to the recovery of arrears of public revenue for the time being in force: Provided that the Secretary of a Village Panchayat may directly recover by distraint, under his warrant, and sale of movable properties of the defaulter subject to such rules as may be prescribed. Provided further that, if for any reason the distraint or a sufficient distraint of a defaulter's property is impracticable, the WPC NO.34242/2006 & 33943/2007 12 Secretary may prosecute the defaulter before a Magistrate. Even on a plain reading of the said provision, it can be easy seen that the dues in the instant case do not make it as an arrear of Tax, Surcharge or Cess and hence the course pursued under Section 210 is not at all applicable. Same is the position with regard to applicability of Section 217 as well, which says as follows:- 217. Recovery of loans and advances made by Government.- (1) Notwithstanding anything contained in the Kerala Local Authorities Loan Act, 1963, the Government may, by order, direct any person having custody of the funds of the Panchayat to pay to them in priority to any other charges against such fund, except charges for the service of authorised loans, any loan or advance made by them to the Panchayat for any purpose to which its funds may be applied under this Act. (2) The person to whom the order referred to in sub- section(1) is addressed shall be bound to comply with such order. The scope and ambit of the above provision is only to the effect that no separate notification under Section 71 of the Kerala Revenue Recovery Act is intended in respect of the dues payable to the Panchayat, which is a local/autonomous body and nothing more. 15. The reliance placed by the learned Government Pleader as well as the learned Counsel for the 6th respondent (in the case filed by the secured creditor) on Suresh Vs. Executive Officer [1995 (2) KLT 75] WPC NO.34242/2006 & 33943/2007 13 appears to be rather misconceived. Referring to the relevant provision of the 'Act' as it existed earlier, it was made clear by the Division Bench therein, that the amount due to the Panchayat, though will not come within the category as mentioned in Section 74, it can be collected in the manner as provided under the Act. The above observation itself shows that the amount due to the Panchayat will not come within the category of Section 74. That apart, what is provided is only the 'application' of the mode of recovery and procedure, invoking the provisions under the Kerala Revenue Recovery Act, which will not transform the so called 'dues' as “public revenue due to land”. This is more so, when the alleged extent of liability of the 6th respondent is yet to be fixed, in view of the undisputed fact that no quantification was ever made with notice to the petitioner and that the Revenue Recovery proceedings initiated against the said respondent (who is the petitioner in WP(C) 34242/2006) as per Ext.P3 and P4 have already been set aside by this Court in the foregoing paragraphs. 16. In the above facts and circumstances, the prayer put forth in WP(C) 33943/2007 is sustained and the concerned respondents are directed to pursue all further steps to implement Ext.5 passed by the District Collector for enabling the petitioner to take possession of the secured assets in accordance with law. This will however be without WPC NO.34242/2006 & 33943/2007 14 prejudice to the rights and liberties of the 6th respondent, who is the borrower, to challenge the sale proceedings by resorting to appropriate steps as provided under Section 17 of the SARFAESI Act. It is also made clear that, the orders passed in both the cases as above will be without prejudice to the right of the 5th respondent/Block Panchayat to proceed against the petitioner in WP(C) 34242/2006, once the liability is finalised as directed hereinbefore and also by proceeding against the other properties of the petitioner, with which the said petitioner has expressed 'no objection', as referred to in paragraph 18 of Ext.P6. The Writ Petitions are allowed to the above extent. No cost. P.R.RAMACHANDRA MENON JUDGE dnc