Point of Law: Applicability of the K.R.R Act cannot be understood to have been limited in its operation within State of Kerala, merely by relying upon employing term 'district' in S.69, especially in absence of a specific provision enabling such restriction.

JUDGMENT :

C.Jayachandran, J

The petitioner in W.P(C).No.22382/2022 is the appellant. She impugns the order of the learned Single Judge dated 11.01.2023 in the said writ petition, as per which, challenge to Ext.P4 order of the second respondent/Tahsildar under the Kerala Revenue Recovery Act ['the K.R.R Act', for short] was repelled.

2. Heard Sri.V.M.Syam Kumar, learned counsel for the appellant and Sri.Vipindas T.K, learned Government Pleader for respondents 1 to 3 and 5. The fourth respondent, who is none other than husband of the appellant, was not represented before us.

3. The first point canvassed by the learned counsel for the appellant is that the instant revenue recovery proceedings are illegal and unsustainable, since the same has been initiated in respect of an alleged tax arrears for the period 1991-1992, a time barred debt. He then invited our attention to S.44 of the K.R.R Act to point out that no opportunity has been granted to the appellant before Ext.P4 order was passed. It was also contended that before proceeding under S.44(3), orders from a competent court must be obtained, which requirement is also violated. Non-compliance of the mandatory requirements under S.44 vitiates Ext.P4 order is the submission. It was also submitted that the K.R.R Act cannot be pressed into service for recovery of an amount allegedly due to the Government of Karnataka. At any rate, the petitioner should have been afforded an opportunity to adduce evidence as regards the factual parameters to be satisfied before initiating proceedings under S.44(3) is the final submission.

4. Learned Government Pleader argued in support of the impugned judgment. It was pointed out that the fourth respondent/defaulter had transferred the subject property in favour of his mother in the year 1996, after the tax arrears have fallen due and that, his mother transferred the subject property in favour of the present appellant/petitioner, who is none other than the wife of the fourth respondent/defaulter in the year 2006. It was submitted that the transfers made were fraudulent, squarely falling within the sweep of S.44 of the Revenue Recovery Act. As regards the contention based on audi alteram partem, it was submitted that a perusal of Ext.P4 order would amplify that the appellant was heard before issuance of the same. At any rate, the non-compliance of the proviso to S.44 is not fatal, in cases where such opportunity would only be an empty formality, in the sense that, it could not have created any difference in the decision reflected vide Ext.P4.

5. Having heard the learned counsel appearing on both sides, we find that the factual matrix available squarely attracts S.44 of the K.R.R Act. It is not disputed before us that the first transfer in favour of the fourth respondent's mother in the year 1996 was after the tax arrears for the period 1991-1992 have fallen due. The contention that an order of a competent court is a sine qua non to proceed under subsection (3) of S.44 is also not appealing. A perusal of S.44(3) does not indicate such a mandate. Instead, the expression 'subject to the order of a competent court' has to be read and understood in the context of the dominant purpose of subsection (3), that is to say, the presumption with respect to the transfer made in the circumstances culled out in subsection (3), that such transfer is made with intent to defeat or delay the recovery of the arrears, until the contrary is proved. The right of the Collector to proceed with the recovery of public revenue, as if such transfer has not taken place, will be subject to orders, if any, of a competent court, especially with respect to the fraudulent nature or otherwise of the questioned transfer. It does not mandate to the contrary that, in the absence of an enabling order of the competent court, the Collector cannot proceed with the recovery. A learned Single Judge of this Court in Gourikutty Amma v. District Collector, Alleppey [1972 KLT SN 1] held to the same effe