The proviso to sub-section (3) of S.44 does not entitle the transferee to an opportunity of being heard before action is taken for attaching the property.

1. This case has come before us on a reference made by justice John Mathew on the ground that the earlier Division Bench ruling of this court reported in 1975 KLT 29 between Gourikutty Amma v. District Collector, Alleppey was not brought to the notice of the Division Bench which decided the later case in 1986 KLT 416 between Agricultural Income Tax Officer v. Thankamma Parameswaran. The question of law that arises for consideration in this case is in regard to the correct interpretation of the provisions of S.44 of the Kerala Revenue Recovery Act, 1968.

2. Sri. K.P. Mathew, who was an Abkari Contractor, owed certain sums to the State towards payment of kist in respect of abkari contract and in regard to the contribution which he was required to be made for the Toddy Welfare Fund. He has made a gift of his properties in favour of his three minor children including the petitioner by executing a deed of gift dated 24-1-1975 in respect of certain immovable properties belonging to him. The State took steps to recover the amount due to it from Sri. Mathew towards Toddy Welfare Fund and kist by resorting to the provisions of the Kerala Revenue Recovery Act. Demand of the amount due was made from Sri. Mathew under S.34 of the Act on 1-11-1972. An order of attachment of the properties belonging to Sri.Mathew which includes the gifted property was made on 19-7-1975. The properties were brought to sale under the said Act and they were actually sold in favour of the 6th respondent who was the highest bidder. An application for setting aside the sale came to be made by the petitioner on 23-3-1979 to the District Collector, the third respondent. He in turn transmitted the same for disposal by the Tahsildar, the 4th respondent. The ground pleaded for setting aside the sale is that the steps contemplated by the Act resulting in the sale were taken behind the back of the petitioner. The Tahsildar rejected his application by order Ext.P1 dated 7-5-1979. Consequently the sale was confirmed on 19th May, 1979. The said order was challenged by the petitioner by way of revision before the third respondent which came to be dismissed by Ext.P2 dated 27-6-1979. A further revision to the Board of Revenue was dismissed by Ext.P3 dated 12-9-1980. The petitioner then approached the State Government by way of revision which came to be dismissed by Ext.P5 dated 5-10-1981. It is in this background that the petitioner has approached this Court under Art.226 of the Constitution challenging Exts.Pl, P2, P3 and P5 and has prayed for setting aside the sale held under the Act.

3. The only contention of Sri.Sukumaran Nair, learned counsel for the petitioner is that the petitioner was not given an opportunity of being heard before the attachment of the property. Reliance was placed in this behalf on the proviso to subsection (3) of S.44 of the Act For the sake of convenience, the entire section is extracted as follows:

"44. Effect of engagements and transfers by the defaulter -

(1) Any engagement entered into by the defaulter with anyone in respect of any immovable property after the service of the written demand on him shall not be binding upon the Government.

(2) Any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrears, with intent to defeat or delay the recovery of such arrear, shall not be binding upon the Government.

(3) Where a defaulter transfers immovable property to a near relative or for grossly inadequate consideration after public revenue due on any land from him has fallen in arrear, it shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear, and the Collector or the authorised officer may subject to the orders of a competent court, proceed to recover such arrear of public revenue by attachment and sale of the property so transferred, as if such transfer had not taken place:

Provided that, before proceeding