High Court Kerala High Court

K.Edayabhanu vs The District Collector on 5 October, 2010

Kerala High Court
K.Edayabhanu vs The District Collector on 5 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 8089 of 2009(E)


1. K.EDAYABHANU , VALUPARAMBIL,
                      ...  Petitioner
2. A.S.BIJU

                        Vs



1. THE DISTRICT COLLECTOR
                       ...       Respondent

2. THE ASSISTANT EXCISE COMMISSIONER

3. THE WELFARE FUND INSPECTOR

4. THE TAHSIDLAR (RR)

5. THE MANAGER

                For Petitioner  :DR.K.P.SATHEESAN

                For Respondent  :SRI.P.K.VIJAYAMOHANAN

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :05/10/2010

 O R D E R
                  C.K.ABDUL REHIM, J.

               -------------------------------------------
                 W.P.(C).No.8089 of 2009
               -------------------------------------------

          Dated this the 5th day of October, 2010


                       J U D G M E N T

———————-

Petitioners were the licensees of Toddy Shops

Nos:74 to 124 of Alappuzha Excise Range, during the

year 2000-2001. The 3rd respondent determined

contributions payable to the Welfare Fund, by virtue of

Ext.P1 order. Since the petitioners defaulted payment

of amounts due thereunder, recovery steps under the

Kerala Revenue Recovery Act was initiated on issuing

Ext.P1 notice. On the basis of request made by the

petitioners, the Government granted installment facility

through Ext.P3 order, dt.20.1.2003. The stipulations

contained therein was for payment of 20% of the

amounts due before 28.2.2003 and to pay the balance in

30 equal monthly installments. According to the

petitioners, the first installment of 20% along with the

collection charges at the rate of 5% was paid as per

W.P.(C).8089/09- -2-

Ext.P4 receipt. It is stated that thereafter the petitioners

had remitted the entire amounts due under Ext.P1 order.

But still the revenue recovery steps continued. Being

aggrieved the 1st petitioner approached this court in WP(C).

No.16980/08. In Ext.P5 judgment, this court directed

consideration and disposal of a representation filed by him

and also directed to furnish him with a copy of the

statement of accounts. Ext.P6 is the copy of statement of

accounts furnished. Complaint was that no proper credit

was given with respect to various payments effected by the

petitioners. Therefore the discrepancies were brought to

the notice of the 3rd respondent. Subsequently another

statement of accounts as per Ext.P7 was issued, in which it

is mentioned that interest to the tune of Rs.4,87,849/- is

outstanding payment. Since Ext.P7 does not reflected all

payments effected, the petitioners have approached the 4th

respondent for getting details regarding payments made on

different dates. Ext.P8 is the details furnished by the 4th

respondent. On the basis of Ext.P8 the 1st petitioner again

W.P.(C).8089/09- -3-

approached the 3rd respondent seeking corrections, and

Ext.P9 is the reply given.

2. The statement of accounts appended to Ext.P9

revealed that payments effected by the petitioners to the

tune of Rs.2,02,695/- was remitted by the 4th respondent to

the 5th respondent Bank on 30.6.2003. But the 5th

respondent Bank had transferred the amount to the credit

of the 3rd respondent, only on 4.11.2006, i.e., after 3=

years. Since the payments were not given credit at the

appropriate time, huge liability of interest and penal

interest had accrued in the account, causing heavy burden

to the petitioners. Grievance of the petitioners is that

inspite of bringing notice of the above facts, the 3rd

respondent is not prepared to rectify the accounts.

According to the petitioners, they have remitted the entire

amounts due, along with 5% collection charges and there is

no outstanding liability. But the 3rd respondent is not

issuing clearance certificate for getting release of the title

deeds under deposit with the 2nd respondent. Since

W.P.(C).8089/09- -4-

representations filed in this regard was not considered, this

writ petition is filed.

3. In the counter affidavit filed by the 3rd respondent

it is contended that the allegation of the petitioner is not

true. Since the remittances reflected in Ext.P8 had not

been accounted to the credit of the 3rd respondent at the

appropriate dates, there is still arrears and the petitioner

was treated as a defaulter. It is stated that, on

reconciliation of statements, it was realised that the amount

collected by the Tahsildar during the year 2003 was

remitted to the District Co-operative Bank, Mannar Branch

(5th respondent) during 2003 itself. But the 5th respondent

had failed to transfer the amounts to the credit of the

Welfare Fund Board. The credit was effected only after

long lapse, on the basis of specific requests made by the 3rd

respondent.

4. It is evident that, relevant credits regarding

payments effected by the petitioners were given, only with

effect from the date on which the 5th respondent had

W.P.(C).8089/09- -5-

transferred the amounts in favour of the Welfare Fund

Board. According to the 3rd respondent, the default was on

the part of the 5th respondent and the 5th respondent alone

is responsible for not transferring the amounts in favour of

the 3rd respondent. As per the statement maintained by the

3rd respondent, amounts are still outstanding payment from

the petitioners and they were treated as defaulters, is the

contention.

5. In a statement filed by the 4th respondent it is

mentioned that the petitioners have committed default in

payment of installments as allowed by the Government, and

therefore recovery steps were proceeded against. Learned

Government Pleader appearing on behalf of 4th respondent

had brought to my notice that a circular has been issued by

the Chief Welfare Fund Inspector of the Kerala Toddy

Workers Welfare Fund Board, instructing the officers

concerned to open Bank accounts with the District Co-

operative Banks in all districts for remittance of

contributions, and directing to forward monthly statement

W.P.(C).8089/09- -6-

of such remittances to the Head Office.

6. The 5th respondent in their counter affidavit

conceded that the 3rd respondent was maintaining an

account with the Head Office of the Bank since 1.1.1993

onwards. It is also admitted that the 4th respondent had

made various remittances on different dates during the year

2003, totalling to a sum of Rs.57,000/-, in the account of the

3rd respondent. The Branch Manager has transferred those

amounts to the Head Office on the same dates itself. But it

is admitted that the amounts were kept at the Head Office

in a ‘Suspense Account’, since the account of the Welfare

Fund remained closed with effect from 16.11.2002 onwards.

7. Considering the entire facts and circumstances as

revealed from contentions of various parties, it is clear that

remittances made by the petitioners pursuant to the

revenue recovery steps were not given credit at the

appropriate time. It is conceded by the 3rd respondent that

if all the remittances were given credit on the appropriate

dates of payments, the liability of the petitioners would have

W.P.(C).8089/09- -7-

been discharged. The arrears now alleged was only due to

non-crediting of the payments effected by petitioners at the

appropriate time. No default can be attributed against the

petitioners with respect to lack of giving credit to their

payments at the appropriate time. Therefore the petitioners

are entitled to get a discharge with respect to the liability.

Consequently they are entitled for a clearance certificate

and return of the title deeds deposited.

8. If the 3rd respondent Board is suffering any loss

due to the default on the part of, either the 4th respondent

or the 5th respondent in not transmitting the amounts at the

appropriate time, it is for the 3rd respondent to work out

remedies as permissible under law against those who are

responsible. Merely because the 3rd respondent is entitled

to resort to such remedies, the petitioners could not be held

liable and they could not be restrained from getting

clearance certificate and return of title deeds.

9. Under the above circumstances, the writ petition

is disposed of directing the 3rd respondent to issue

W.P.(C).8089/09- -8-

clearance certificate to the petitioners facilitating them to

get release of the title deeds from the 2nd respondent. It is

made clear that issuance of clearance certificate in favour

of the petitioners will not affect the rights if any available

under law to the 3rd respondent for proceeding against

respondents 4 and/ or 5, whoever is responsible for the

delay caused in transmitting the amounts remitted by the

petitioners.

C.K.ABDUL REHIM, JUDGE.

okb