TMI Blog1989 (10) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is the State Bank of Travancore. The fourth respondent is the owner of 688 acres and 53 cents of land in Sy. Nos. 329/4C, 329/1, 329/2 and 329/3 in Vythiriamsom, South Wynad Taluk. The above property was mortgaged by the fourth respondent to the State Bank of Travancore, Calicut Branch, on July 28, 1969, for an amount of Rs. 10,18,549.56. As the amount was not paid, the bank filed a suit and obtained a decree in O. S. No. 104 of 1976 on the file of the Subordinate Judge, Kozhikode. The decree was passed on February 10, 1977. For realising the amount, execution proceedings were commenced and E. P. No. 223 of 1979 for the sale of the property was pending. At that stage, the fourth respondent, by filing C. R. P. No. 4015 of 1981, got the execution proceedings stayed. Subsequently, the first respondent, the Tahsildar, South Wynad Taluk, commenced proceedings under the Kerala Revenue Recovery Act for recovery of a sum of Rs. 12, 88,094.57 being the agricultural incometax and sales tax arrears due from Southern Plantations Ltd., the fourth respondent. Exhibits P-2 and P-2(a) are the letter and sale notice. On receiving the same on February 19, 1985, immediately exhibit P-3 objection- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition was not filed within 14 days, the Collector or the Authorised Officer is not bound to make any enquiry and the enquiry will have to be made only where there is a valid petition as contemplated under section 46 of the Revenue Recovery Act. It is claimed that as the objection-petition was filed beyond the time-limit, it was ignored. Hence, the writ petition may be dismissed as regards respondents Nos. 1 to 3. The crucial questions that arise for consideration in this writ petition are : (1) whether the proceedings under the Kerala Revenue Recovery Act taken for recovery of arrears of agricultural income-tax and sales tax will have precedence over the mortgage decree obtained by the petitioner ; and, (2) whether respondents Nos. 1 and 2 are obliged under law to consider the objection-petition filed by the petitioner. Points Nos. 1 and 2 : It should be remembered that non-filing of an objection-petition before the Revenue authorities is not a bar for the maintainability of a writ petition under article 226 of the Constitution of India. The direct authority for this is the Division Bench decision in Gourikutty Amma v. District Collector, Alleppey [1974] K LT 103. The Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reates a charge was actually introduced in the statute book by the Amendment Act 9 of 1974 which came into force on April 1, 1974. The introduction of this particular provision in the statute is significant in the sense that an equitable mortgage was created in favour of the bank-petitioner, on July 28, 1969, and the subsequent introduction of the provision in the statute cannot obliterate or override the pre-existing rights of the parties. In the very nature of things, section 40(2) cannot wipe out the right in favour of the petitioner-bank which is a pre-existing right and which has arisen in July, 1969. In the absence of an overriding effect for section 40(2), the rights of the petitioner-bank under the mortgage are protected. In this context, it is significant to remember that, even according to the counter-filed by respondents Nos. 1 and 2, the arrears of sales tax arose in the years 1975-76 to 1979-80. The proceedings for recovering these sales tax arrears appear to have commenced in the year 1981-82. As regards arrears of agricultural income-tax, the arrears arose in the years 1975-76 to 1977-78. Proceedings for recovering the same appear to have been initiated from the ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Arrears of rent due to the Government, recoverable as a result of any agreement, through a civil court shall, notwithstanding anything contained in such agreement, be recoverable as an arrear of public revenue due on land under the provisions of this Act. (4) For the removal of doubts, it is hereby declared that the provisions of sections 44 and 50 shall apply in the case of recovery of any sum under the provisions of this section. (5) Without prejudice to the provisions of sub-section (4), where any person has, by a written agreement, agreed that specific immovable property belonging to such person shall be security for the payment by him of any tax or other amount due by him to the Government, any engagement entered into by such person with any one in respect of such property, during the period when the agreement is in force, shall not be binding on the Government." The language of section 68 clearly indicates that certain other amounts due to the Government other than public revenue due on land can be recovered as arrears of land revenue by resorting to the provisions of this Act. Section 68 does not create a first charge on the property as was done by section 3. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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