IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 WP(C).No. 10627 of 2006(M) -------------------------------------- PETITIONERS: --------------------- 1. M.AHAMMED ZUBAIR, S/O.MOHAMMED SALAHUDEEN, PULAVAS STREET, CUMBAM, MADURAI DISTRICT. 2. SULTHAN MOIDEEN, S/O.MOHAMMED SALAHUDEEN, PULAVAS STREET, CUMBAM, MADURAI DISTRICT. 3. M.MOHAMMED ISMAIL, S/O.MOHAMMED SALAHUDEEN, PULAVAS STREET, CUMBAM, MADURAI DISTRICT. BY ADVS. SRI.A.T.ANILKUMAR, SRI.S.DILEEP (KALLAR). RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, COLLECTORATE, IDUKKI. 3. REVENUE DIVISIONAL OFFICER, DEVIKULAM, IDUKKI. 4. TAHSILDAR, UDUMBANCHOLA TALUK, TALUK OFFICE, NUDUMKANDOM. 5. AGRICULTURAL INCOME TAX & SALES TAX OFFICER, SALES TAX OFFICE, KUMALI, IDUKKI DISTRICT. R1 TO R5 BY GOVT. PLEADER SRI. NOBLE MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.10627/2006-M: APPENDIX PETITIONERS' EXHIBITS:- EXT.P.1: COPY OF THE JUDGMENT IN O.P.NO.25044/99(F) DTD. 17/12/2002 OF THIS HON'BLE COURT. EXT.P.2: COPY OF THE REPRESENTATION DTD. 20/12/2002 SUBMITTED BY THE PETITIONERS BEFORE THE R.4. EXT.P.3: COPY OF THE DEMAND LETTER NO. A5 298/00 DTD. 12/10/2004 ISSUED BY THE R.4. RS.2,16,634/- FOR ALL THE ASSESE. EXT.P.4: COPY OF THE GOVERNMENT ORDER NO. 3/2004 DTD. 05/02/2004 WITH ENGLISH TRANSLATION. EXT.P.5: COPY OF THE REPRESENTATION DTD. 17/11/2003 SUBMITTED BY THE PETITIONERS TO THE ASSISTANT COMMISSIONER. RESPONDENTS' EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.10627 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of November, 2011 J U D G M E N T The petitioners are the legal heirs of late Mohammed Salahudeen who was an assessee under the Agricultural Income Tax Act on the files of the 5th respondent. For non- payment of agricultural income tax, the property belonging to the petitioners were sold. The petitioners approached this Court by filing O.P. No.25044/1999, in which, by Ext.P1 judgment it was directed as follows: “The petitioners are challenging purchase of petitioner's property by Government in revenue recovery proceedings for a consideration of 10 paise. According to the petitioner, the property was sold in auction for recovery of arrears of agricultural income tax and sales tax. It is conceded that petitioner is still holding possession of the property and is taking the usufructs even though by virtue of the Government Order the property stands purchased by the Government. The petitioner is directed to approach the 4th respondent and pay the entire arrears of tax and interest due or any other liability that may be payable under the Act to be determined, if necessary after receiving orders of demand from the Agricultural Income Tax Officer or Sales Tax Officer and on payment of any such dues that will be recoverable under the statute, the property will be reconveyed to the petitioners at the cost of the petitioners. This judgment shall be effective only if the petitioner makes payment within two weeks from the date on which the 4th respondent issues communication demanding the balance amount, interest and other amounts after collecting orders, if necessary from the Agricultural Income Tax Officer. There will be stay against all proceedings for taking over possession including cutting and removal of trees in the W.P.(C)No.10627 of 2006 -2- property unless the petitioners default in making payment as ordered above. O.P. is disposed of as above.” But instead of adjusting payments made by the petitioners, a fresh demand notice was issued for Rs.2,16,634/-. According to the petitioners, if the amounts paid by the petitioners are duly adjusted, no arrears would be due from the petitioners to the Government by way of agricultural income tax. Despite the same, the property purchased by the Government for 10 paise has not been reconveyed to the petitioners. The petitioners would further contend that the petitioners are also entitled to the benefit of Ext.P4 Government order. The petitioners have filed Ext.P5 representation in this regard. The petitioners seek the following reliefs: “a) issue a writ of mandamus or any other appropriate writ, order or direction and thereby command the 2nd respondent to adjust the agricultural income tax and sales tax already paid by the petitioners for the respective years and direct them to issue a fresh demand. b) issue a writ of mandamus or any other appropriate writ, order or direction and thereby direct the 4th respondent to extend the benefits under Ext.P4 Government Order to the petitioners while issuing the fresh demand. W.P.(C)No.10627 of 2006 -3- c) issue a writ of mandamus or any other appropriate writ, order or direction, and thereby command the 4th respondent to dispose Ext.P5 representation within a time frame fixed by this Hon'ble Court.” 2. No counter affidavit has been filed by the respondents. 3. I have heard the learned Government Pleader also. If the petitioners have already paid the amounts due, there is no reason why Ext.P1 judgment cannot be implemented. If Ext.P4 Government order was in force at the relevant time, the applicability of Ext.P4 order to the petitioners' case is also liable to be considered. In the above circumstances, this writ petition is disposed of as follows: The 4th respondent shall consider and pass orders on Ext.P5 representation, after affording an opportunity of being heard to the petitioners, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. While doing so, the W.P.(C)No.10627 of 2006 -4- 4th respondent shall consider the applicability of Ext.P4 to the petitioners' case. The order on the face it shall disclose the total amount due and the total amount paid by the petitioners. It shall also disclose as to whether Ext.P4 is applicable to the petitioners and if it is not applicable as to the reasons why the same is not applicable. If Ext.P4 is applicable to the petitioners, the benefit arising therefrom shall be given to the petitioners. If any further amounts are due, the petitioners shall pay the same as demanded by the 4th respondent. On payment of the same, the property shall be reconveyed to the petitioners, as per Ext.P1 judgment, within 3 months therefrom. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/