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Judgment
Sathish Ninan, J
The suit challenging revenue recovery proceedings against the respondent-plaintiff was decreed by the trial court. The defendants are in appeal.
As per Ext.A1 letter dated 21.06.1982, the plaintiff required teak wood of certain specifications from the defendants. As per Ext.A2 communication dated 06.12.1982, the plaintiff's request was accepted subject to the terms and conditions enumerated therein. As per Ext.A3 communication dated 25.06.1983, the plaintiff accepted Ext.A2. However, certain quantity of teak wood was not taken delivery of by the plaintiff alleging, delay in supply. The defendants contended that the said quantity was re-sold at the risk and loss of the plaintiff. The re-sale was for a lesser price. The difference in value was sought to be recovered from the plaintiff as damages by way of revenue recovery proceedings. It is challenging the said proceedings that the suit was filed.
The trial court held that the defendants cannot be an arbiter in their own cause and accordingly decreed the suit.
I have heard the learned Special Government Pleader on behalf of the appellants and the learned counsel for the respondent.
Section 79 of the Forest Act reads thus:-
“79. Recovery of money due to Government.- All money, other than fines, payable to the Government under this Act or any rule made thereunder, or on account of timber or forest produce or of expenses incurred in the execution of this Act in respect of timber or forest produce, or under any contract relating to timber or forest produce including any sum recoverable thereunder for the breach thereof or in consequence of its cancellation or under the terms of a notice relating to the sale of timber or forest produce by auction or by invitation of tenders, issued by or under the authority of a Divisional Forest Officer, and all compensation awarded to the Government under this Act may, if not paid when due, be recovered under the law for the time being in force, as if it were an arrear of land revenue.”
The revenue recovery proceedings in question were initiated tracing power thereunder. Section 72 of the Kerala Revenue Recovery Act, as it stood at the relevant time, barred the jurisdiction of Civil Courts except in cases where fraud was alleged. The Section reads thus:-
“72. General bar to jurisdiction of civil courts save where fraud alleged:- Except as otherwise expressly provided in this Act, every question arising between the Collector or the authorised officer and the defaulter or his representative or any other person claiming any right through the defaulter, relating to the execution, discharge or satisfaction of a written demand issued under this Act or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such demand, shall be determined not by suit, but by order of -
(i) the Board of Revenue, where the Collector is a party to the question;
(ii) the Collector, in other cases:
Provided that a suit may be brought in a civil court in respect of any such question on the ground of fraud.”
A reading of the plaint shows that there is no allegation of fraud. Therefore, the suit was not maintainable. Though an issue with regard to the maintainability of the suit was raised, the same was not specifically adverted to by the Court. Issue No.4 raised for trial reads thus:-
“4) Whether the suit is barred by the provisions of Revenue Recovery Act.”
Since there was no allegation of fraud, it should have been held that the suit is barred under Section 72. The issue is answered against the plaintiff.
Section 70 of the Revenue Recovery Act provides adequate forum for the plaintiff to have the dispute resolved. Section 70 reads thus:-
“70. Payment under protest:-(1) When proceedings are taken under this Act against any person for the recovery of any sum of money due from him, such person may, at any time before the commencement of the sale of any property attached in such proceedings, pay the amount claimed and at the same time delivery a protest signed by himself or by his authorised agent to the officer issuing the demand or conducting the sale, as the case may be, who shall thereon drop further proceeding for the recovery of the money.
(2) When the amount is paid under protest under sub-section (1), such amount together with the protest, if received by an officer other than the one who has issued the demand, shall be forwarded to the officer who has issued the demand. The officer issuing the demand shall, if proceedings have been initiated at the instance of any other officer forward the amount and the protest to the Officer at whose instance the proceedings have been initiated. The officer issuing the demand or the officer at whose instance the proceedings have been initiated, as the case may be, shall enquire into the protest and pass appropriate orders. If the protest is accepted, the officer disposing of the protest shall immediately order the refund of the whole or part of the money paid under protest and initiate fresh proceedings for the realisation of the amount, if any due.
(3) Subject to the provisions contained in sub-section (4), the person making a payment under protest shall have the right to institute a suit for the refund of the whole or part of the sum paid by him under sub-section (2).
(4) No suit under sub-section (3) shall be instituted if the law under which the amount paid under protest is due provides a remedy, whether by way of appeal, revision or other proceeding, to the person who paid such amount, before exhausting such remedy.”
In terms of the Section, the plaintiff can pay under protest the amount claimed, and the concerned authority is required to adjudicate upon the dispute raised. Sub-section 3 of Section 70 saves the right of the plaintiff to challenge such decision before a Civil Court. Therefore, the plaintiff has adequate remedy as provided for under the statute. It is for the plaintiff to adopt such course.
It would be sufficient to hold that, if proceedings as provided under Section 70 is resorted to by the plaintiff, then the same shall be considered notwithstanding the lapse of time due to the pendency of the present suit and appeal.
In the result, this appeal is allowed. The decree and judgment of the trial court are set aside, and the suit will stand dismissed. No costs.