N.C. Bose and Others v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T.R. Ramachandran Nair
Judgment Date: 2012-12-18
Court Decision / Holding: Writ Petition dismissed. No costs.
Final Disposition: Writ petition dismissed; no costs.

Parties to the Case

Appellants / Petitioners

N.C.BOSE
PRABHA KUMARY
SOMARAJAN UNNITHAN
VIJAYALEKSHMI
P.SIVADASAN PILLAI
DILEEPKUMAR S.
SAJI S.
K.G.BABURAJ
SUDHARMINI R.
JAYAKUMAR N.
SYAMALETHA
OMANAKUTTAN
KOSHY PANICKER
T.D.JAMES
RETNAKARAN

Respondents

STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO TAXES DEPARTMENT OF TAXES, GOVT.SECRETARIAT THIRUVANANTHAPURAM
THE COMMISSIONER - DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM
THE INSPECTING ASSISTANT COMMISSIONER OF AGRICULTURAL INCOME TAX AND COMMERCIAL TAX, KOLLAM
THE INSPECTING ASSISTANT COMMISSIONER OF AGRICULTURAL INCOME TAX AND COMMERCIAL TAX KOTTARAKKARA

Legal Representation & Advocates

Counsels for Petitioners

• SRI.B.S.SIVAJI

Counsels for Respondents

• SHRI VIJU ABRAHAM

Case Synopsis & Summary

This writ petition challenges the renewal fee for licences issued under the Kerala Money Lenders Act. The petitioners are money lenders operating as financiers who hold licences and have been paying renewal fees. They contend that under Rule 4(2) of the Kerala Money Lenders Rules, 1964, the renewal fee should be Rs. 1,000, whereas the present practice mandates Rs. 3,000; they seek a declaration that the renewal fee fixed by the Rules is Rs. 1,000 and that they are not liable for the higher amount. The 3rd respondent contends that licence grant and renewal are governed by Section 4(2) of the Act, which prescribes an initial licence fee and other conditions, and Section 4(6), which provides that licences may be renewed year to year with the same provisions applying as for grants. It is argued that the fee history shows an evolution from Rs. 100 to Rs. 5,000 (ultimately reduced to Rs. 3,000 following a court judgment in Kerala Small Financiers Association v. State of Kerala, 1998). The State maintains that the Act prevails over subordinate legislation, and in case of conflict, statutory provisions govern. The court notes the Act’s supremacy, holds the renewal fee is governed by Sections 4(2) and 4(6), and dismisses the petition. Government consideration to delete the Rules was not mandatorily directed. No costs.

Provisions of Law Cited

Section 4(2) of the Money Lenders ActSection 4(6) of the Money Lenders ActRule 4(2) of Kerala Money Lenders Rules, 1964

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that renewal fees should be fixed as per Rule 4(2) of the Kerala Money Lenders Rules, 1964 at Rs. 1,000 and that the higher Rs. 3,000 is impermissible since subordinate rules cannot override the Act. They seek a declaration that the renewal fee is Rs. 1,000 and request directions to the Government to delete or reconsider the Rules in light of the Act.

Contentions of Respondents

The respondents assert that renewal of a licence is governed by Sections 4(2) and 4(6) of the Money Lenders Act, with licence renewal subject to the same provisions as grant. They explain the historical escalation of licence fees—from Rs. 100 to Rs. 5,000, then reduced to Rs. 3,000 following Kerala Small Financiers Association v. State of Kerala. They contend that the Act prevails over subordinate legislation and that the court should not direct deletion of the Rules; the petition should be dismissed with no costs.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Kerala Small Financiers Association v. State of Kerala	1998(2) KLT 813	Positive	The decision is cited to justify the reduction of the renewal fee to Rs.3,000 and is used as supportive precedent demonstrating the Act’s primacy over subordinate rules in determining licence-fee matters.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 18TH DAY OF DECEMBER 2012/27TH AGRAHAYANA 1934 WP(C).No. 15568 of 2012 (U) --------------------------- PETITIONER(S): ------------- 1. N.C.BOSE, AGED 74 YEARS S/O. P.K.NARAYANAN, N.C.BHAVAN, PULIMOOTTIL MUNDAKKAL, KOLLAM, GENERAL SECRETARY ALL KERALA MONEY LENDERS ASSOCIATION (REG.NO.212/13) KOLLAM. 2. PRABHA KUMARY , AGED 36 YEARS W/O. S.B.JAYACHANDRAN AMBIKA FINANCE (LICENCE NO.1707), THEKKEVILA P.O. KOLLAM DISTRICT. 3. SOMARAJAN UNNITHAN , AGED 40 YEARS S/O. THANKAPPAKURUP, (LICENCE NO.1542) KOPARAPADIJATTIL, ERAVICHIRA NADUVIL, PATHARAM P.O. KOLLAM. 4. VIJAYALEKSHMI , AGED 58 YEARS W/O. SIVADASAN PILLAI, (LICENCE NO.1359) JANAKI MANDIRAM, ADICHANALLUR P.O., KOLLAM. 5. P.SIVADASAN PILLAI , AGED 65 YEARS S/O. PADMANABHAN PILLAI, (LICENCE NO.1696) JANAKI MANDIRAM, ADICHANALLUR P.O., KOLLAM. 6. DILEEPKUMAR S., AGED 47 YEARS S/O. SADANANDAN (LICENCE NO.1400), HARISREE FINANCE MAYYANAD, KOLLAM. 7. SAJI S., AGED 39 YEARS S/O. K.SASIDHARAN PILLAI, (LICENCE NO.1202) AYANI FINANCIERS, MAYYANAD, KOLLAM. 8. K.G.BABURAJ , AGED 67 YEARS S/O. GOPALAN, (LICENCE NO.1670), ASWATHY THANNIMUKKU MAYYANAD, KOLLAM. 9. SUDHARMINI R., AGED 52 YEARS W/O. BHARATHAN K., LICENCE NO.1706 CHANDRA FINANCIERS, THANNI JN., MAYYANAD KOLLAM. WP(C).No. 15568 of 2012 (U) 10. JAYAKUMAR N., AGED 43 YEARS S/O. NATARAJAN, KEERTHI FINANCE, (LICENCE NO.1735) SREENIVAS, THANKASSERY, KOLLAM. 11. SYAMALETHA , AGED 40 YEARS W/O. PRABHAKARAN PILLAI, ANDOOR FINANCE (LICENCE NO.1208), ANDOOR HOUSE, ADICHANELLOOR OYOOR, KOLLAM DISTRICT. 12. OMANAKUTTAN , AGED 49 YEARS S/O. SIVARAMAN, ROHINI FINANCE, (LICENCE NO.1230) ROHINI MANDIRAM, AMC JN., CHAVARA KOLLAM DISTRICT. 13. KOSHY PANICKER, AGED 48 YEARS S/O. GEORGE PANICKER, LICENCE NO.1734 PUSHPAMANGALAM, HOSPITAL JN., KUNDARA KOLLAM DISTRICT. 14. T.D.JAMES , AGED 46 YEARS S/O. DANIEL, J.J.FINANCE, (LICENCE NO.1800) J.J.BUILDINGS, THEKKUMBHAGAM, CHAVARA KOLLAM. 15. RETNAKARAN , AGED 43 YEARS K.R.FINANCE, (LICENCE NO.1582), K.R.NIVAS CHATHANNUR, KOLLAM. BY ADV. SRI.B.S.SIVAJI RESPONDENT(S): - -------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO TAXES DEPARTMENT OF TAXES, GOVT.SECRETARIAT THIRUVANANTHAPURAM. 2. THE COMMISSIONER - DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE INSPECTING ASSISTANT COMMISSIONER OF AGRICULTURAL INCOME TAX AND COMMERCIAL TAX, KOLLAM. 4. THE INSPECTING ASSISTANT COMMISSIONER OF AGRICULTURAL INCOME TAX AND COMMERCIAL TAX KOTTARAKKARA. BY GOVERNMENT PLEADER SHRI VIJU ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## ## **PETITIONERS'EXHIBITS** EXHIBIT P1: TRUE COPY OF THE LICENCE ISSUED BY THE 3RD RESPONDENT ON 19.1.2000. EXHIBIT P2: TRUE COPY OF TREASURY CHALLAN DATED 30.4.2012. EXHIBIT P2(a): TRUE COPY OF TREASURY CHALLAN DATED 18.4.2012. EXHIBIT P2(b): TRUE COPY OF TREASURY CHALLAN DATED 20.4.2012. EXHIBIT P2(c): TRUE COPY OF TREASURY CHALLAN DATED 20.4.2012. EXHIBIT P2(d): TRUE COPY OF TREASURY CHALLAN DATED 20.4.2012. EXHIBIT P2(e): TRUE COPY OF TREASURY CHALLAN DATED 20.4.2012. EXHIBIT P2(f): TRUE COPY OF TREASURY CHALLAN DATED 20.4.2012. EXHIBIT P2(g): TRUE COPY OF TREASURY CHALLAN DATED 20.4.2012. EXHIBIT P2(h): TRUE COPY OF TREASURY CHALLAN DATED 30.4.2012. EXHIBIT P2(i): TRUE COPY OF TREASURY CHALLAN DATED 25.4.2012. EXHIBIT P2(j): TRUE COPY OF TREASURY CHALLAN DATED 23.4.2012. EXHIBIT P2(k): TRUE COPY OF TREASURY CHALLAN DATED 4.4.2012. EXHIBIT P3: TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT DATED 16.4.2012. EXHIBIT P4: TRUE COPY OF THE CIRCULAR NO.7/2012 DATED 28.3.2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5: TRUE COPY OF THE E-CHALAN RECEIPT ISSUED BY THE 2ND RESPONDENT. ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY P.A.TO JUDGE dsn **T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------W.P.(C)No.15568 Of 2012 -------------------------------------------------DATED THIS THE 18[th] DAY OF DECEMBER, 2012** ## **JUDGMENT** This Writ Petition is filed by the petitioners aggrieved by the imposition of fee for renewal of licence under the Money Lenders Act. The petitioners are financiers who have taken out licence under the Act. It is averred in paragraph No.2 of the Writ Petition that as per the provisions of the Act, the present licence fee is Rs.3,000/-. Even though there was an enhancement, the same was challenged in Writ Appeal No.768/1997 and after considering various aspects, the amount was reduced fixing it as Rs.3,000/-. Even though the State challenged the same before the Hon'ble Supreme Court, that was not interfered with. 2. The petitioners are relying upon Rule 4(2) of the Kerala Money Lender's Rules, wherein the renewal fee is fixed as Rs.1,000/-. It is stated that the petitioners and other members are compelled to pay an amount of W.P.(C)No.15568/12 -2- Rs.3,000/-. The petitioners are therefore seeking for various reliefs including a declaration that in view of Rule 4 (2) of the Kerala Money Lenders Rule, 1964, the fee for renewal of licence issued under the Kerala Money Lenders Act is Rs.1,000/-. 3. The 3[rd] respondent has filed a statement. It is stated that grant of licence is covered by Section 4(2) of the Money Lenders Act, which reads as follows: “Section 4(2)-Every licence shall be granted in such form as may be prescribed and shall be subject to the following conditions and to such other conditions as may be prescribed, namely:- - (i) payment of a licence fee of (five thousand rupees) (ii) payment of security as provided in sub-section (2A).” Section 4(6) of the Act deals with renewal of licence, which reads as follows: “Section 4(6)- A licence granted under subsection (2) may be renewed from year to year and the provisions of sub-section (1) to (5) shall W.P.(C)No.15568/12 -3- apply in relation to the renewal of a licence as they apply in relation to the grant of a licence.” In the light of the above, it can be seen that for renewal of licence, provisions of sub-section 1 to 5 of the Act will apply. Therefore it is stated that enhancement fee is in tune with the fee fixed for licence. In paragraph No.6 it is explained that the licence fee initially fixed was Rs.100/-, which was increased to Rs.1,000/- in 1983, and then to Rs.2,000/- in 1993. During 1997, fee was raised to Rs.5,000/- which was reduced to Rs.3,000/- in the light of the judgment of this Court in **Kerala Small Financiers Association** v. **State of Kerala (1998(2) KLT 813)** . Therefore the learned Government Pleader submitted that the licence fee as prescribed under the provisions of the Act will apply for renewal in the light of Section 4(6) and even in the case of conflict, between the statutory Rule and the Act, provisions of the Act will prevail. 4. The learned counsel for the petitioners submitted W.P.(C)No.15568/12 -4- that Rules have been framed in the year 2000, subject to further amendments in the matter and therefore the intention of the legislature is clear. We need not strain too much in the light of the express provisions of the Act and in case of conflict, provisions of the Act alone will govern the field. Subordinate legislation which runs contrary to the provisions of the Act cannot get enforcement also. 5. In the light of the above, the petitioners are bound to pay renewal fee as provided under Section 4(2) and Section 4(6) of the Act and they cannot insist that they need pay only in terms of the Rules. 6. The learned counsel for the petitioners prayed that there may be a direction to the Government to consider the matter. The learned Government Pleader submitted that the Government will examine the matter for deleting the provisions of the Rules, since there are express provisions under the Act governing the very same matter. In the light of the express provisions in the Act, this Court will not be W.P.(C)No.15568/12 -5- justified in issuing a direction to the Government as such. The Writ Petition is accordingly dismissed. No costs. **Sd/-(T.R.RAMACHANDRAN NAIR) JUDGE** . dsn