IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 WP(C).No. 25566 of 2009(M) --------------------------------------- PETITIONER(S): ---------------------- 1. AYISHA, AGED 22 YEARS, W/O.MONTE ALIAS SHARAFFUDHEEN, PUTHENPEEDIYAKKAL HOUSE, MOORIAD P.O., CHALAPPURAM, KOZHIKODE-673 002. 2. SHARAFFUDHEEN, S/O.MOIDEEN KOYA, RESIDING IN PUTHENPEEDIAKKAL HOUSE, MOORIYAD P.O., CHALAPPURAM, KOZHIKODE-673 002. BY ADV. MR.T.SETHUMADHAVAN, MR.PUSHPARAJAN KODOTH, MR.K.JAYESH MOHANKUMAR, SMT.VANDANA MENON, SMT.ANJU P.NAIR. RESPONDENT(S): ------------------------ 1. THE DISTRICT COLLECTOR, KOZHIKODE. 2. THE TAHSILDAR, REVENUE RECOVERY, KOZHIKODE. 3. CHIEF ACCOUNTS OFFICER (TR), BSNL, KANNUR. 4. THE SUPERINTENDENT, DISTRICT JAIL, KOZHIKODE. * ADDL. R5 IMPLEADED ADDL. R5: INSPECTOR GENERAL OF POLICE (PRISON), THIRUVANANTHAPURAM. *ADDL. 5TH RESPONDENT IS IMPLEADED SUO MOTU AS PER ORDER DATED 05/10/2009 IN WPC.25566/2009. R1, R2, R4 & ADDL.R5 BY GOVERNMENT PLEADER MR.BIJOY CHANDRAN. R3 BY ADV. MR.MATHEWS K.PHILIP,SC, BSNL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 25566/2009-M APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 05/09/2009 PASSED BY THE DISTRICT COLLECTOR, KOZHIKODE. EXT.P2: COPY OF THE FIR NO.117/2007 DAATED 02/07/2007 PREPARED BY THE S.I. OF POLICE, CHAKKARAKKAL POLICE STATION. EXT.P3: COPY OF THE CHARGE UNDER SECTION 420 OF IPC SUBMITTED BY THE S.I. OF POLICE, CHAKKARAKKAL. EXT.P4: COPY OF THE SHOW CAUSE NOTICE DATED 09/06/2009 ISSUED BY 1ST RESPONDENT TO THE PETITIONER UNDER SECTION 65 OF THE REVENUE RECOVERY ACT. EXT.P5: COPY OF THE REPLY STATEMENT DATED 17/06/2009 SUBMITTED BY THE PETITIONER'S HUSBAND BEFORE DEPUTY COLLECTOR (RR), KOZHIKODE. EXT.P6: COPY OF THE ADDITIONAL STATEMENT DATED 23/06/2009 SUBMITTED BY THE PETITIONER'S HUSBAND BEFORE THE COLLECTOR, KOZHIKODE. EXT.P7: COPY OF THE REPORT OF THE DISTRICT COLLECTOR DATED 09/06/2009. EXT.P8: COPY OF THE COMMUNICATION SENT BY THE R1 TO THE R4 DATED 05/09/2009. EXT.P9: COPY OF THE PETITION SUBMITTED BY 2ND PETITIONER DATED 18/09/2009 BEFORE THE R3. EXT.P10: COPY OF THE POSTAL RECEIPT OBTAINED BY THE 2ND PETITIONER FOR SENDING EXT.P9 TO RESPONDENTS 1 & 3. RESPONDENT'S EXHIBITS: EXT.R3(a): COPY OF THE WRITTEN STATEMENT FILED BY CHIEF ACCOUNTS OFFICER BSNL IN OS.130/08 ADDITIONAL SUB COURT, KOZHIKODE. //TRUE COPY// P.A. TO JUDGE rs. C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 25566 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of December, 2009 J U D G M E N T 1. The 1st petitioner has approached this court aggrieved by arrest and detention of her husband pursuant to order issued under Section 65 of the Kerala Revenue Recovery Act. The recovery steps was initiated for realisation of amounts due to M/s. BSNL pertaining to telephone charges with respect to six distinct telephone connections availed by him. On 09.09.2009 this court had issued an interim order directing release of the detenu, on condition of the 1st petitioner executing security bond before the 1st respondent ensuring payment of the amount sought to be recovered. A further condition was also imposed for payment of an amount of Rs.2 lakhs on or before 30.09.2009, and further to surrender the Passport if any held by the 1st petitioner's husband, immediately on his release. W.P.(C)No. 25566 of 2009 2 2. Subsequently it was reported to this court by the standing counsel appearing for 3rd respondent that, the detenu was released by the authorities in the jail on 10.09.2009, without ensuring compliance of any of conditions stipulated in the interim order and that the 1st respondent had already initiated steps with the Inspector General of Police (Prison) to conduct enquiry and to take appropriate action against those persons responsible. 3. This court suo moto impleaded the Inspector General of Prisons, as additional respondent and he was required to file an affidavit before this court enumerating actions taken in this regard. An affidavit was filed in this regard by the additional 5th respondent reporting that action has already been initiated against the Superintendent of Central Prison, Kannur, and against other authorities of that prison who had released the detenu without ensuring compliance of the conditions stipulated. This court has taken the affidavit on record and directed the Government as well as the authorities concerned to pursue W.P.(C)No. 25566 of 2009 3 with the actions already initiated in this regard. 4. The husband of the 1st petitioner, the detenu who was released has got impleaded in the writ petition as additional 2nd petitioner. A detailed affidavit is filed, in which liability with respect to the amounts sought to be recovered is seriously disputed. It is further contended that the 3rd respondent has not issued any notice of demand nor any opportunity was given prior to initiation of recovery proceedings. According to the 2nd petitioner the telephone connections, pertains to which the arrears is now demanded, was not in his name and that he is not liable for payment of amounts due under those connections. 5. On behalf of the 3rd respondent a reply statement was filed in which it is stated that the 2nd petitioner obtained six telephone connections from various exchanges under the Kannur SSA by producing fake identity cards and used the same for his commercial purposes. It is further stated that since huge amounts are in arrears, the BSNL had initiated recovery steps and they have also approached W.P.(C)No. 25566 of 2009 4 the Police authorities concerned seeking investigation in the matter. It is also stated that with a view to evade recovery steps the 2nd petitioner had transferred some properties into the name of his mother and a suit was filed in this regard by his mother in which an interim injunction was obtained. 6. In the meanwhile the petitioners have filed I.A. No.12026/09 seeking review of the order dated 09.09.2009. That I.A. was dismissed on 26.10.09. Eventhough the petitioner filed Writ Appeal No.2497/09 against disposal of the I.A, the Division Bench has not entertained the appeal and it was permitted to be withdrawn with liberty to move before the Single Judge, seeking appropriate modification/variation in the conditions imposed. 7. Contention of the petitioner is that the recovery steps are being pursued without giving him an effective opportunity to dispute the liability. With respect to the specific contention that the revenue recovery steps were initiated without issuing any notice of demand or without conducting any hearing by the authorities of the BSNL, W.P.(C)No. 25566 of 2009 5 there is no specific reply forthcoming in the statement of the 3rd respondent. 8. From the facts and circumstances, I am of the opinion that principles of nature justice requires that the 2nd petitioner shall be afforded with an effective opportunity to dispute correctness of the demand. I notice that there is a provision for effective adjudication of the issue under Section 7 B of the Indian Telegraph Act, 1888. Therefore I am of the opinion that the petitioner can be relegated to the remedy available by way of arbitration against the demand in question. 9. Learned counsel for the petitioners submitted that the financial condition of the petitioners is so pathetic and that they are not in a position to comply with the conditions stipulated by this court through order dated 09.09.2009. Therefore petitioners seeks indulgence of this court for a modification of the conditions stipulated. 10. Under the above circumstances the writ petition is disposed of directing the 3rd respondent to take steps for W.P.(C)No. 25566 of 2009 6 reference of the dispute for adjudication through arbitration as provided under Section 7 B of the Indian Telegraph Act, on condition of the petitioners remitting a sum of Rs.1,00,000/- (Rupees One lakh only) on or before 20.01.2010, directly to the 3rd respondent. If amounts as stipulated above is paid steps shall be taken for reference of the dispute for arbitration directed above. 11. Needless to say that in such case recovery shall be made only subject to final result of the adjudication under Section 7 B. 12. It is further made clear that if the petitioners fails to make payment as stipulated above all further coercive steps can be persued against the 2nd petitioner. C.K. ABDUL REHIM JUDGE shg/