2017 Supreme(Ker) 984
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHAJI P. CHALY, J.
N. Sekharan Nair - Petitioner
Versus
The State of Kerala & Others - Respondents
WP (C). No. 8257 of 2013 (F)
Decided On : 06-10-2017
For the Petitioner:Sajeev Kumar K. Gopal, R. Harishankar, Advocates.
For the Respondents:M.V. Anandan, Sr. Government Pleader, V.G. Arun, T.R. Harikumar, Advocates.
Headnote:Doctrine of Merger -Appellate authority has functional its attention to the innovative instruction or any issue ascending in appeal while passing the appellate order, one ought be vigilant in applying the doctrine of merger to the appellate order.
1. Petitioner in W.P.(C) No.8257 of 2013 is the 5th respondent in the other captioned writ petition. The writ petitions are materially connected in respect of the revenue recovery proceedings initiated against the petitioners in the writ petitions for arrears of kisth. Therefore, I heard them together and propose to deliver a common judgment.
2. Petitioner in W.P.(C) No.8257 of 2013 is the owner in possession of an extent of 75 cents of property comprised in Survey Nos.82/7A and 82/7B in Kadakarapalli in Cherthala North Village. Petitioner was allegedly working in Tamil Nadu Electricity Board from 1965 till his retirement in the year 1996. According to the petitioner, petitioner’s sister late Smt. Ambika Devi was residing very near to the property of the petitioner. Praveen Kumar, son of Ambika Devi was engaged in abkari business along with certain other persons including the 6th respondent in the writ petition viz., K.N. Gireesh. The abkari business run by the said persons failed, consequent to which, the said persons have shifted their residence to Thodupuzha. Smt. Ambika Devi expired on 04.09.2002. Her husband Padmanabha Pillai was a retired Circle Inspector of Excise also died on 29.11.2002.
3. According to the petitioner, forging solvency certificate relating to the landed property of the petitioner and by impersonation, petitioner’s nephew viz., Praveen Kumar managed to get the abkari business. Petitioner did not know about the malpractice committed by his relatives. However, when property of the petitioner was proceeded with, petitioner has approached this Court by filing O.P.No.2180 of 1995. As per Ext.P2 interim order, a Division Bench of this Court constituted an investigation team to enquire into the matter, and the investigating officer submitted Ext.P3 report, pointing out that petitioner is innocent and has not executed any document in favour of the Excise Department, and further that the solvency certificate was obtained based on forged documents and somebody impersonated the petitioner and participated in the auction. Anyhow, the original petition was finally dismissed by a Division Bench of this Court as per Ext.P4 judgment dated 17.05.2005. According to the petitioner, Ext.P3 enquiry report had not taken into account by the Division Bench.
4. Anyhow, being aggrieved by Ext.P4 judgment, petitioner approached the apex court by preferring Special Leave Petition, which was disposed of as per Ext.P7 judgment in S.L.P (C) No.15208 of 2005 dated 24.08.2009. Since the petitioner sought permission to file revision petition before the Board of Revenue, Kerala, all the parties were given the liberty to raise the contentions open to them. Allegations were made by the petitioner against two Advocates of this Court who have attested the vakalath of the petitioner, however, while disposing of the S.L.P., it was recorded by the apex court that no relief would be sought against the impleaded parties, viz., the advocates, and accordingly, they were deleted from the party array.
5. Accordingly, petitioner filed a revision under Sec.83 of the Kerala Revenue Recovery Act before the Board of Revenue, which was also dismissed as per Ext.P8 order. Ext.P8 order was challenged by the petitioner in W.P.(C) No.1279 of 2011 before this Court. However, the same was dismissed as per the judgment dated 06.09.2011. Even though petitioner preferred W.A.No.1573 of 2011, the Division Bench directed the petitioner to approach the 1st respondent by preferring a revision petition. Thereupon, petitioner preferred Ext.P9 revision before the State Government, in which Ext.P10 stay order was obtained. However, later, the revision was dismissed by Ext.P11 order by the 1st respondent. The thrust of the contention of the petitioner is that, in Ext.P11, the 1st respondent failed to consider, as to whether the petitioner is liable to pay the amount on the ground that there is no power for the 1st respondent to adjudicate the issue except procedural i