Corporation Of Kozhikode vs K.N.Radha
2022 Latest Caselaw 6769 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                &
             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                        WA NO. 658 OF 2022
 AGAINST THE JUDGMENT IN WP(C) 19156/2011 OF HIGH COURT OF KERALA
APPELLANTS/2ND & 3RD RESPONDENTS:

    1     CORPORATION OF KOZHIKODE
          REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE,
          CALICUT BEACH P. O., KOZHIKODE - 673 032.
    2     THE SECRETARY
          CORPORATION OF KOZHIKODE, CORPORATION OFFICE, CALICUT
          BEACH P. O., KOZHIKODE - 673 032.
          BY ADV G.SANTHOSH KUMAR (P).


RESPONDENTS/PETITIONER & RESPONDENTS 1, 4 & 5:

    1     K.N.RADHA
          W/O. C.BALAKRISHNAN NAIR (LATE), KIZHAKKE NANGOLATH
          HOUSE, P. O. CHEVAYUR, CALICUT-17.
    2     THE STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF
          DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM-695 039.
    3     THE DISTRICT COLLECTOR
          CIVIL STATION, KOZHIKODE, PIN- 673 009.
    4     THE DEPUTY TAHASILDAR (RR)
          CIVIL STATION, KOZHIKODE DISTRICT - 673 009.
          BY ADVS.
          K.M.JAMALUDHEEN FOR R1
          SMT. VINITHA B, SENIOR GOVERNMENT PLEADER FOR R2 - R4



     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.658 of 2022                       2



                                                                            CR



                                    JUDGMENT

Dated this the 14th day of June, 2022

SHAJI P.CHALY,J

Captioned appeal is preferred by the Corporation of Kozhikode and its

Secretary - respondents 2 & 3 in W.P.(C) No.19156 of 2011, challenging the

judgment of the learned single Judge dated 5.11.2021, whereby the writ petition

filed by the 1st respondent in the appeal was allowed and Exhibits P3 demand

notice dated 26.6.2009, Exhibit P4 Memo dated 25.5.2009 and Exhibit P9 demand

notice under section 34 of the Kerala Revenue Recovery Act, 1968 demanding an

amount of Rs.2,71,416/- along with interest and other charges were quashed.

Brief material facts for the disposal of the writ appeal are as follows:

2. The writ petitioner retired from the service of the Corporation of

Kozhikode - the 1st appellant on 30.6.1999. After 10 years of retirement, she was

served with Exhibit P3 notice by the Secretary of the Corporation of Kozhikode -

the 2nd appellant, directing her and two others to pay Rs.69,936/- and

Rs.25,646/- each with interest within 7 days. According to the writ petitioner, on

enquiry she came to know that the appellants had earlier issued Exhibit P4 memo

directing herself and four others to pay Rs.1,72,521/- on the basis of the

recommendation made from the Local Fund Audit Accounting, allegedly for non-

collection of arrears of bus stand licence fee. Apparently the allegation is that, the

writ petitioner and others omitted to take timely action to proceed with the appeal

filed against the dismissal of S.T.No.750/1999, which was filed for recovering the

arrears of bus stand fee dues from the contractor .

3. According to the writ petitioner, the Corporation proceeded against the

Contractor engaged for collecting the bus stand fee by filing a complaint before

the competent Magistrate Court but the case was dismissed on account of default

on the part of the Advocate. It is further submitted that though the appeal was

entrusted with a Counsel in the High Court, no timely action was taken. It is the

further contention of the writ petitioner that she has nothing to do with the

collection of arrears and she had retired from service before the order was passed

in the case before the Magistrate Court and she is no way liable to pay the loss, if

any, sustained to the Corporation.

4. It is also the case of the writ petitioner that she has submitted Exhibits P5

& P7 representations, consequent to Exhibit P3 demand notice issued by the

Corporation, which was accepted, evident from Exhibits P6 & P8 receipts,

however, without taking into consideration any of the aspects raised by the

petitioner, recovery action was initiated by issuing Exhibit P9 demand before

attachment of property under section 34 of the Kerala Revenue Recovery Act,

1968 on 2.7.2010. It was in the aforesaid constrained circumstances, the

petitioner has filed the writ petition.

5. The learned single Judge, after considering the rival submissions, allowed

the writ petition basically holding that similarly situated persons like the

petitioner, approached this Court by filing W.P.(C) No.10888 of 2010 and

proceedings were quashed as per Exhibit R2(a) judgement dated 22 nd March,

2012. In Exhibit R2(a) judgement, a learned single Judge of this Court held that

the revenue recovery action was initiated by the Corporation, after a unilateral

adjudication and hence, the procedure adopted cannot be sustained under law in

view of the dispute raised by the petitioners therein against the demand. It was

accordingly that the coercive action initiated against the petitioner was quashed.

It is thus challenging the legality and correctness of the judgement of the learned

single Judge, the appeal is filed.

6. We have heard learned counsel Sri.G.Santhosh Kumar for the appellants,

learned Senior Government Pleader Smt.Vinitha.B., learned counsel

Sri.K.Jamaludheen for the writ petitioner/1st respondent and perused the

pleadings and materials on record.

7. Apparently from the counter affidavit filed by the appellants in the writ

petition it is clear that the subject issue relates to collection and remittance of

bus stand licence fee for the period from 1.4.1997 to 31.3.1998 by the

Contractor. The reason for proceeding against the petitioner for recovering the

amount is that she failed to initiate action from 19.3.1998 onwards to cancel the

Contractor's licence. Admittedly the writ petitioner was a Section Clerk and she

retired from service in the year 1999. It is also admitted that S.T.No.750 of 1999

was filed against the Contractor before the Judicial First Class Magistrate Court,

Kozhikode for recovery of the balance bus stand licence fee but the said

complaint happened to be dismissed. It is thus attributing negligence on the part

of the writ petitioner, the amount was sought to be recovered from the writ

petitioner and others.

8. In fact the recovery was initiated on the basis of unilateral quantification

of the damage suffered consequent to non-recovery of the balance bus stand fee

by the Corporation itself. That was the basic reason for the learned single Judge

of this Court to quash the proceedings against the three petitioners therein.

Against the writ petitioner/ 1st respondent also, the allegation made is failure to

proceed against the Contractor for non-remittance of the bus stand licence fee for

the year 1997-1998.

9. Therefore, in our considered opinion the same situation as considered in

w.p.(c) 10888 of 2010 is prevailing in the instant case also. It was basically taking

into account the said aspect, the learned single Judge has allowed the writ

petition and quashed the recovery proceedings against the writ petitioner. In that

view of the matter, we do not think the appellants have made out any case for

interference, especially due to the fact that the demand raised against the writ

petitioner was disputed by her by submitting due representations before the

Corporation. Therefore, without proper adjudication by a competent forum, the

demand raised against the writ petitioner by resorting to revenue recovery action,

cannot be sustained under law. That apart admittedly the dues towards the bus

stand licence fee is for the period 1997-1998. Evident from Exhibit P2 the writ

petitioner has retired from service on 30.6.1999. The demand notice viz., Exhibit

P3 was issued on 26.06.2009 after 11 years of the alleged arrears from the

Contractor has fallen due, and ten years after the retirement of the writ

petitioner; and it seems Exhibit P4 memo was issued on 25.5.2009, which is also

apparently after 11 years of the arrears fallen due.

10. Whatever that be, Exhibits P3 & P4 remained as demands, against which

objections were raised by the writ petitioner, evident from Exhibits P5 & P7,

which were accepted by the Corporation as per Exhibits P6 & P8 receipts. It is

significant to note that Exhibit P9 recovery proceedings was initiated apparently

on the basis of the requisition made by the Secretary of the Corporation during

the year 2010 i.e., 11 years after the contract period. The limitation for recovery

of dues is guided by section 538A of the Kerala Municipality Act, 1994, which

specifies that, all sums due by any person to the Municipality or to be recovered

by the Municipality and allied charges or the expenses incurred, under the

development scheme, shall be recovered as if arrears of revenue due on land,

under the provisions of the Kerala Revenue Recovery Act, 1968 (15 of 1968), for

the time being in force, without prejudice to any other manner of recovery.

Therefore, first of all in order to proceed with the revenue recovery as per the

Kerala Revenue Recovery Act, 1968, there should be an adjudicated sum due to

the appellants as per a process known to law.

11. Admittedly, a unilateral adjudication was done in spite of the

objections raised by the petitioner as is specified above, which cannot be

sustained under law, since there is no power vested with the authority to quantify

damages as is done in this case. Moreover, section 539 of Kerala Municipality Act,

1994 deals with limitation for recovery of dues. Sub-section (1) thereto clearly

specifies that no distraint shall be made, no suit shall be instituted and no

prosecution shall be commenced in respect of any sum due to a Municipality

under this Act after the expiration of a period of three years from the date on

which distraint might first have been made, suit might first have been instituted,

or protection might first have been commenced, as the case may be, in respect of

such sum.

11. It is true, under the Kerala Revenue Recovery Act, 1968, the proceedings

start when a requisition is made to the Authority under Section 69 (2) of the act.

Here is a case where the requisition itself is made only in the year 2010 i.e., more

than 12 years after the amount has fallen due in the year 1998. Therefore,

undoubtedly the proceedings initiated against the writ petitioner as per Exhibit P9

demand and the requisition made thereto is after a period of 3 years as is

provided under section 539 of the Act, 1994.

12. Taking into account the said aspect also, we have no hesitation to hold

that the appellants have not made out any case for interference with the

judgment of the learned single Judge, there being no jurisdictional error or other

legal infirmities justifying us to do so.

Needless to say, the writ appeal fails, accordingly, it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                    SHAJI P.CHALY

smv                                                       JUDGE