Kerala High Court

Mohanan vs The State Of Kerala on 5 March, 2025

Author: Murali Purushothaman

Bench: Murali Purushothaman

                                                2025:KER:18909
WP(C) NO. 43452 OF 2024
                                 1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

         THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

  WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA,

                               1946

                      WP(C) NO. 43452 OF 2024

PETITIONER/S:

     1      MOHANAN
            AGED 63 YEARS
            S/O KRISHNAN, RESIDING AT PATTERI VALAPPIL
            HOUSE, ALAMKODE .P.O, MALAPPURAM, PIN - 679585

     2      BABU
            AGED 45 YEARS
            S/O KRISHNAN, RESIDING AT PATTERI VALAPPIL
            HOUSE, MOOKUTHALA .P.O, MALAPPURAM, PIN -
            679585


            BY ADVS.
            ABDUL RAOOF PALLIPATH
            E.MOHAMMED SHAFI
            PRAJIT RATNAKARAN
            KRISHNAPRIYA R.




RESPONDENT/S:

     1      THE STATE OF KERALA,
            REPRESENTED BY ITS SECRETARY DEPARTMENT OF
            REVENUE, GOVERNMENT SECRETARIAT, TRIVANDRUM,
            PIN - 695001

     2      THE DISTRICT COLLECTOR
            MALAPPURAM COLLECTORATE, CIVIL STATION -
            MALAPPURAM, UP- HILL.P.O, MALAPPURAM, PIN -
            676505
                                                        2025:KER:18909
WP(C) NO. 43452 OF 2024
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     3          THE TAHSILDAR- PONNANI,
                TALUK OFFICE - PONNANI, CIVIL STATION , PONNANI
                NAGARAM.P.O MALAPPURAM DIST, PIN - 676505

     4          THE VILLAGE OFFICER - ALAMCODE,
                VILLAGE OFFICE - ALAMCODE, ALAMCODE .P.O,
                MALAPPURAM DIST, PIN - 679585

     5          STATE TAX OFFICER - PATTAMBI
                OFFICE OF THE STATE GOODS AND SERVICES TAX
                DEPARTMENT. PATTAMBI.P.O, CHERPULASSERY RD,
                PALAKKAD DIST, PIN - 679303

     6          RADHAKRISHNAN,
                S/O KRISHNAN, AGED 52 YEARS RESIDING AT PATTERI
                VALAPPIL HOUSE, NANNAMMUKKU.P.O,
                CAHNGARAMKULAM, MOOKKUTHALA, MALAPPURAM, PIN -
                679574

     7          HARIDASAN,
                S/O KRISHANAN, AGED 58 YEARS, RESIDING AT
                PATTERI VALAPPIL HOUSE, NANNAMMUKKU.P.O,
                CAHNGARAMKULAM, MOOKKUTHALA, MALAPPURAM, PIN -
                679574



         THIS    WRIT   PETITION    (CIVIL)   HAVING    COME    UP    FOR
ADMISSION        ON   05.03.2025,   THE   COURT   ON   THE     SAME   DAY
DELIVERED THE FOLLOWING:
                                                         2025:KER:18909
WP(C) NO. 43452 OF 2024
                                   3

                             JUDGMENT

The petitioners and respondents 6 and 7 are brothers

and are co-owners of property having an extent of 0.2590

hectares (64 cents) in Survey No.227 in Alamkode Village,

Ponnani Taluk, Malappuram District. They have purchased the

property by Ext.P1 sale deed. The petitioners state that,

Ext.P6 notice of sale was issued to respondents 6 and 7 for

recovery of an amount of Rs.29,43,79,885/- towards sales tax

arrears. Thereupon, the 1st petitioner filed W.P.

(C)No.11155/2024, which was dismissed by this Court. The

writ appeal filed against the said Judgment as

W.A.No.618/2024 was also dismissed. Later, Ext.P7 fresh

notice of sale has been issued by the 3rd respondent proposing

to attach one half share of respondents 6 and 7 in the

property. The petitioners state that while attaching and selling

the property, the house constructed by the 1 st petitioner and

the industrial unit constructed by the 2 nd petitioner using their

own fund will be included. The petitioners also state that,

since there are no dues from them, their right to enjoy the

property covered by Ext.P1 has to be protected. It is further

stated that, a Civil Suit has been filed by the petitioners as

O.S.No.31/2023 seeking partition and separate possession of 2025:KER:18909 WP(C) NO. 43452 OF 2024

the property covered by Ext.P1 and in the meantime, if sale

pursuant to Ext.P7 is effected, they would be denied their right

to hold the property. Accordingly, the petitioners have filed

the writ petition seeking the following reliefs:

"(i) Declare that the action initiated against the undivided ½ shares of property comprised in Survey No: 227/- in, Alamkode Village, Ponnani Thaluk, Malappuram Distrct in which the petitioners are co-owners without setting apart the residential house belongs to the 1st petitioner and the non residential unit/ industrial unit belonged to the 2nd petitioner is illegal.

(ii) issue a writ of mandamus or such other

that proceedings pursuant to Ext P7 shall be taken only against the half share of property

without affecting the right and possession of the petitioners over the residential unit and non-residential unit situated in the property.

(iii) issue a writ of mandamus or such other

to keep all further proceeding pursuant to Ext P7 in abeyance till the time the suit for partition O.S. No 31/2023 pending before the Munsiff - Magistrate court Ponnani seeking partition and separate possession is finally decided."

3. A counter affidavit has been filed by the 3rd 2025:KER:18909 WP(C) NO. 43452 OF 2024

respondent, wherein, it is stated that sales tax arrears are due

from respondents 6 and 7 and Revenue Recovery Certificate

has been issued by the District Collector. Since the defaulters

were not ready to clear off the dues, half share of the property

covered by Ext.P1 was attached under Section 36 of Kerala

Revenue Recovery Act, 1968. It is contended that the present

writ petition has been filed only to delay the revenue recovery

proceedings and to avoid the payment of dues. It is also

submitted that the 1st petitioner had earlier filed W.P.

(C)No.11155/2024 for similar reliefs and the same was

dismissed and the writ appeal filed against the said judgment

was also dismissed as per Ext.R3(a) judgment. It is contended

by the 3rd respondent that, though the 1st petitioner was

directed to move the concerned Civil Court and to obtain

injunction if he is entitled under law, so far no injunction order

is obtained.

4. Heard Sri.Abdul Raoofpallipath, the learned

counsel for the petitioners and the learned Government

Pleader for the respondents.

5. W.P.(C)No.11155/2024 was filed by the 1 st

petitioner impugning the revenue recovery proceedings issued 2025:KER:18909 WP(C) NO. 43452 OF 2024

against the property covered by Ext.P1 for recovery of sale tax

arrears due from respondents 6 and 7. The said writ petition

was disposed of by judgment dated 22.03.2024 and the

relevant portion of the judgment reads as follows:

"2. The learned counsel for the petitioner submitted that the petitioner has filed a partition suit in O.S. No.31 of 2023 before the Court of Munsiff Magistrate, District Court, Ponnani. However, no interim injunction has been granted in favour of the petitioner. The prayer in effect in the writ petition is to grant him an injunction against the revenue authorities for proceeding against the property in question. This Court finds that this writ petition is untenable, for the prayer made. This Court is not exercising jurisdiction to decide the civil suit. The learned counsel for the petitioner has also been unable to point out any right in him for filing the representation before the District Collector in the State Government against the revenue recovery notices and therefore, no such direction has made by the learned counsel for the petitioner that deciding the representation can be granted by this Court in exercising extra ordinary jurisdiction under Article 226 of the Constitution of India inasmuch as there is no corresponding duty on the authorities to consider the representation made by the petitioner.

In view thereof, I find no substance in this writ petition, which is hereby dismissed; however, without cost."

2025:KER:18909 WP(C) NO. 43452 OF 2024

6. Against the said judgment, W.A.No.618/2024

was filed and the Division Bench by Ext.R3(a) judgment

dismissed the writ appeal. Paragraphs 6 to 8 of the judgment

read as follows;

"6. The learned Single Judge had considered the fact that the partition suit OS.No.31 of 2023 is presently pending, and had found that insofar as no interim injunction had been granted in favour of the appellant, the proper remedy for him lay in pursuing the said civil proceedings, rather than rushing to this Court with the Writ Petition. The learned Single Judge has also found that the Writ Petition is untenable insofar as the appellant has not been able to point out any right in him so as to prefer Ext.P9 representation, which he seeks to be disposed by a direction to the said effect from this Court.

7. We find that the civil proceedings initiated by the appellant is at present pending before the competent Munsiff Court. It is settled law that the revenue recovery authority is entitled entitled to proceed against the property with respect respect to which Section 49 notice has been issued after due compliance of the procedure envisaged, notwithstanding the fact that the same remains in co-ownership of a person who is not proceeded against for any liability. Further, the appellant has not pointed out any error or non compliance on the part of the revenue recovery authorities in complying with the mandatory procedure before issuing the RR notice impugned. It is also trite that once a civil remedy has been invoked, the 2025:KER:18909 WP(C) NO. 43452 OF 2024

revenue recovery authorities have no jurisdiction to decide on the titular disputes with respect to the property which is the subject matter of such suit. Once proceedings under civil law are invoked and are pending, the proper remedy for the appellant is to continue with the said remedies and pursue the same in accordance with law. At any rate, filing of the Writ Petition while the civil litigation is pending is not the appropriate remedy so as to challenge a proceeding under Section 49 of the Revenue Recovery Act.

8. The learned Single Judge has thus properly found that the appellant's right, if any, is to move the concerned civil court and to obtain injunction if he is entitled to it under law. We see no reason to interfere with the finding of the learned Single Judge."

In the light of the findings in the aforesaid judgments,

I find that, no relief can be granted to the petitioners in this

writ petition. Therefore, without prejudice to the right of the

petitioners to avail any other remedy as may be available in

law, this writ petition is dismissed.

Sd/-

MURALI PURUSHOTHAMAN JUDGE GBG 2025:KER:18909 WP(C) NO. 43452 OF 2024

APPENDIX OF WP(C) 43452/2024

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE SALE DEED DATED 06.08.2008 EXECUTED BY MR. ABOOBACKER

Exhibit P2 TRUE COPY OF THE ELECTRICITY BILL ISSUED TO THE 1ST PETITIONER DATED 01.11.2024

Exhibit P3 TRUE COPY OF THE RATION CARD ISSUED TO THE 1ST PETITIONER'S FAMILY