OP (KAT) No. 123 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA,** ## **1943** **OP(KAT) NO. 123 OF 2021** **AGAINST THE ORDER DATED 25-09-2020 IN OA (EKM) 692/2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. PETITIONER/APPLICANT :** **RAJANI.K, AGED 64 YEARS, W/O. N.V BALAN, NAMBIAR VEETTIL, ARIYALLOOR POST, PIN-678 312, ARIYALLOOR VILLAGE, THIROORANGADI TALUK, MALAPPURAM DISTRICT, SUB REGISTRAR (RETIRED), TANUR SUB REGISTRAR OFFICE, MALAPPURAM ON 30.11.2012)** **BY ADVS.SRI.KALEESWARAM RAJ, KUM.A.ARUNA & KUM.THULASI K. RAJ** ## **RESPONDENTS/RESPONDENTS :** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES (E) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT,PIN-695 001** - **2 THE INSPECTOR GENERAL OF REGISTRATION, OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, VANCHIYOOR, THIRUVANANTHAPURAM,PIN-695 035,** - **3 THE DISTRICT REGISTRAR (GENERAL), MALAPPURAM , OFFICE OF THE DISTRICT REGISTRAR (GENERAL), MALAPPURAM, U.P.HILL, MALAPPURAM-676 505.** - **BY SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (KAT) No.123 of 2021 2 ## **ALEXANDER THOMAS & A.BADHARUDEEN, JJ.** ## **------------------------------------------------** ## **OP (KAT) No.123 of 2021** _(Arising out of the impugned final order dated 25-09-2020 in O.A(Ekm) No.692 of 2020 on the file of the KAT, Ernakulam Bench.)_ **---------------------------------------------------Dated this the 11[th] day of August, 2021** ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** Aggrieved by the inaction on the part of the respondents in the W.P(C) in disbursing the full DCRG amount due to the petitioner on the ground of liabilities alleged against her, the original applicant had approached the Tribunal by filing the instant O.A (Ekm) No.692 of 2020, with the following reliefs _[See page No.26 of the page book of the_ ## _O.P(KAT)]_ : - _“i. Call for all the records leading to Annexure A1 and declare that Annexure A1 as bad in law and quash Annexure A1._ - _ii. Direct the respondents to exonerate the applicant from the liability and to release the DCRG amount forfeited by them._ - _iii. To allow such other relief that this Honourable Tribunal deem fit and proper and allow the costs.”_ 2. The Tribunal, after hearing both sides, has rendered the impugned Ext.P7 final order dated 25-09-2020 in O.A(Ekm) No.692 of 2020 with a specific finding that the alleged liability amount of Rs.40,07,840/- sought to be finalized and fastened against the original applicant in terms of the impugned Annexure A1 liability certificate dated 11-12-2017, is illegal and ultra vires for the simple reason that the same has been issued much beyond the three OP (KAT) No.123 of 2021 3 years outer time limit mandated under Note 3 to Rule 3 Part III of KSR. That apart, it appears that the original applicant was not given reasonable opportunity of being heard before the decision to fix liability as referred to in Annexure A1. Accordingly, the Tribunal has directed that the respondents in the O.A should immediately release the full amount of DCRG due to the applicant within two months. However, the Tribunal has made an observation that the quashment of the impugned Annexure A1 liability certificate will not affect, if any, of the respondents in the O.A to proceed against the original applicant in accordance with law. Citing the said liberty, the Government has now issued Ext.P8 G.O(Rt.) No.205/ 2021/TAXES dated 13-03-2021, whereby it has been ordered that the liability to the tune of Rs.40,44,053/- in relation to the very same transaction in question, should be realized from the original applicant by way of revenue recovery proceedings. 3. The original applicant has taken up a plea that the Tribunal should not have given liberty to the respondents in the O.A to proceed as against the original applicant for recovery of the alleged liability and that the action of the Government in unilaterally seeking to fasten the liability and recover the same through revenue recovery proceedings in terms of Ext.P8 is illegal and ultra vires. OP (KAT) No.123 of 2021 4 Further that the Tribunal should have adjudicated the specific plea of the petitioner that since two fair values were fixed for the same class of property at the relevant time, the original applicant cannot be said to be made liable for any of the actions in relation to the transactions relating to the registration of sale deeds, as admittedly the valuation was done on the basis of one such fair value amount, etc. It is on this pleas that the original applicant has chosen to file the instant original petition so as to challenge Ext.P7 final order of the Tribunal to the limited extent it has given liberty to the respondent in the O.A and also for seeking of quashment of Ext.P8 G.O dated 13-03-2021, etc. 4. Heard Sri.Kaleeswaram Raj, the learned Advocate instructed and assisted by Sri.Varun C.Vijay, the learned counsel appearing for the petitioner in the O.P(KAT)/sole applicant in O.A before the Tribunal and Sri.Saigi Jacob Palatty, the learned Senior Government Pleader appearing for the respondents in the O.P(KAT)/respondents in the O.A. 5. A brief recital to the factual aspects in this case may be necessary: The petitioner/original applicant had retired from service of the Registration Department on 30-11-2012 while holding the post of Sub Registrar. Long after the expiry of the outer time OP (KAT) No.123 of 2021 5 limit of three years mandated in Note 3 to Rule 3 Part III of KSR for finalization and fixation of liabilities for recovery from the DCRG, etc, R-3 in the O.A has issued Anneuxre A1 liability certificate dated 11-12-2017 alleging that an amount of Rs.40,07,840/- has been finalized as liability against the original applicant for being recovered as against the DCRG amount. The basis of the liability alleged is that the original applicant, while exercising the statutory duties of the Sub Registrar in accordance with the provisions in the Registration Act has not collected the correct stamp duty payable for the registration of various deeds and that the said amount of Rs.40,07,840/- is the shortfall of the stamp duty and registration fee that should have been actually collected by the original applicant before those registered transactions. As indicated herein above, the Tribunal after hearing both sides, has proceeded on the premise that since the respondents in the O.A have sought to allege and fasten the said liability without taking recourse to the departmental proceedings or judicial proceedings as envisaged in the operative portion of Rule 3 Part III of KSR, the only legally acceptable course of procedure for the respondents in the O.A, to have finalized any such liability was to act within the terms of Note 2 and Note 3 of Rule 3 Part III of KSR. For that purpose, the OP (KAT) No.123 of 2021 6 respondents in the O.A should have issued show cause notice to the incumbent/pensioner concerned and after affording reasonable opportunity of being heard to the affected party, thereafter should have fixed and finalized the liability, and that too, within the outer time limit of three years from the date of retirement of the incumbent/pensioner concerned. In the instant case, the outer time limit of three years mandated in Note 3 to Rule 3 Part III of KSR has indisputably expired on 30-11-2015. It is long thereafter that the respondents in the O.A have unilaterally issued Annexure A1 liability certificate dated 11-12-2017 alleging the said huge liability of Rs.40,07,840/- on the above count. More over it appears that the respondents in the O.A had never given any reasonable opportunity of being heard to the original applicant before the finalization of the decision referred to in Annexure A1. For all these reasons, the Tribunal has rightly found that the fixation and finalization of the liability in terms of Annexure A1 is illegal and ultra vires for the simple reason that it is in patent violation of the statutory procedure envisaged in Note 3 to Rule 3 Part III of KSR. Hence the Tribunal has rightly ordered that the full amount of DCRG should be released by the respondents in the O.A to the original applicant within two months. The learned counsel for the petitioner/original applicant OP (KAT) No.123 of 2021 7 has apprised this Court that the said amount of DCRG has already been released to her. However the Tribunal has observed in para 5 of Ext.P7 final order that the quashment of the impugned Annexure A1 liability certificate will not affect the rights, if any, of the respondents in the O.A to proceed against the applicant in accordance with law. 6. In a similar case relating to the issue of expiry of the three year outer time limit in Note 3 Part III of KSR, the Tribunal has rendered Ext.P2 final verdict in O.A (Ekm) No.608 of 2019, wherein while directing that the respondents in the O.A should release the full amount of DCRG to the applicant therein on account of expiry of the said mandatory time limit, the Tribunal has noted that Ruling No.6 appended to Rule 116 of Part III of KSR stipulated that the Government could recover liabilities, if the same are computed against the pensioner beyond the three year period, by resort to civil proceedings or by way of Revenue Recovery Proceedings under the Kerala Public Accountants Act. Other than Rule 3 and Rule 116, there is no provision in the KSR to regulate these matters. Accordingly, the Tribunal in Ext.P2 verdict in the other case had ordered that the disbursal of the full amount of the DCRG will not stand in the way of the respondents in the said O.A OP (KAT) No.123 of 2021 8 for proceeding against the applicant therein as per the provisions of Ruling No.6 to Rule 116 of Part III KSR by resort to either civil suit or Revenue Recovery Proceedings under the Public Accountants Act, etc. The Tribunal in Ext.P2 observed that going by the provision contained in Ruling No.6 of Rule 116 of Part III KSR, the Government may either resort to the remedy of a civil suit or may resort to the provisions of revenue recovery proceedings as supra. However, in that regard it may be pertinent to refer to the statutory provision contained in Ruling No.6 appended to Rule 116 of Part III KSR, which reads as follows : _“ 6. If in any case the amount withheld on the death-cumretirement gratuity or the cash deposit, or the surety bond taken from the employee has been released on the expiry of one year after the date of retirement without the liabilities being finalised and adjusted, or it is not adequate to cover the liabilities finally fixed, action will be taken against him under Rule 3 of Part III, Kerala Service Rules to make up the loss by withholding, withdrawing or effecting recoveries from the pension sanctioned. If action under Rule 3 ibid is not possible due to the expiry of the time limit prescribed for such action, or due to any other reason, the retired employee will be proceeded against in a Civil Court for recovering the pecuniary loss caused to Government.”_ A reading of Ruling No.6 appended to Rule 116 makes it clear that there is no stipulation therein that the authority concerned could also resort to revenue recovery Proceedings under the Public Accountants Act. Hence the above said observations in Ext.P2 order of the Tribunal may not be fully correct. 7. However, it has to be borne in mind that the legislature has enacted the Kerala Public Accountants Act, 1963 (State Act 37 of OP (KAT) No.123 of 2021 9 1963), the preamble to which Act states that it is an Act to consolidate and amend the laws relating to prevention of loss to the Government by the default or misconduct of public accountants in the State of Kerala. Sec. 2(b) of the said Kerala Public Accountants Act, 1963 defines the 'Public Accountant' as follows : _“Sec.2. Definitions.—In this Act, unless the context otherwiserequires,— (a)......_ _(b) 'Public accountant' means a person who, by reason of being employed in the service of the Government or of any other authority or institution notified by the Government in this behalf from time to time in the Gazette, is entrusted with the receipt; custody, possession or control of any moneys or securities for money, documents, or other property belonging to the Government, or to any such authority or institution notified as aforesaid, or who, in his capacity as Government servant, or servant of any such authority or institution, is entrusted with the receipt, custody, possession or control of any moneys or securities for money, documents or other property belonging to any person or persons or to any institution for and on behalf of the Government or any such authority or institution, as the case may be, and includes a person who is, or has been, a Government Law Officer._ Sec.3 of the said Act deals with the procedure for furnishing statement of particulars of claim to be drawn up by the Collector or Head of the Department. Sec. 4 thereof deals with the realisation of money and recovery of securities, etc., from the public accountant. Sec.5 of the said Act deals with seizure and attachment of property of public accountant, etc. 8. A Division Bench of this Court in para 3 of the decision in _**Paramu Pillai v. District Collector**_ [1989(1) KLT 224] has held that the definition of the expression of Public Accountants in the Kerala Public Accountant Act, 1963 makes it clear that it is not every OP (KAT) No.123 of 2021 10 employee in the service of Government, who can be regarded as a public accountant and it is only an employee who is entrusted with the receipt, custody, possession or control of any moneys or securities for money, documents, or other property belonging to the Government or who, in his capacity as Government servant is entrusted with the receipt, custody, possession or control of any moneys or securities for money, document or other property belonging to any person or persons or to any institution for and on behalf of the Government. Further, the Division Bench has also held that what is contemplated in Sec. 3(1) of the said Act is that the claim on public accountant for moneys, securities for money, documents or other property. Though Sec. 3(1) of the Act does not speak of entrustment of money or property etc., Sec. 3(1) can be invoked only as against public accountant and so the incumbent concerned should necessarily satisfy the definition of 'public accountant' in terms of Sec.2(b) of the said Act and that a Government servant can fulfill the definition of “public accountant” in terms of Sec. 2(b) only when there is such entrustment, etc. and where there is no entrustment of moneys, securities for money, documents or other property to the Government servant concerned, then he/she will not fulfill the definition of “Public Accountant” in OP (KAT) No.123 of 2021 11 terms of Sec. 2(b) and hence the provisions contained in the said Act including Sec. 3(1) cannot be pressed into service as against such a Government servant. It is profitable to refer to para No.3 of the judgment of the Division Bench of this Court in **Paramu Pillai** 's case supra [1989(1) KLT 224, pp.225-226), which reads as follows : _“3.S.3 of the Act which has been invoked by the authorities in this case may be extracted as follows :_ _“Statement of particulars of claim to be drawn up by Collector of Head of Department-_ _(1) Whenever it appears to the Collector or the Head of a Department of the Government or other authority or institution notified under clause (b) of S.2, under whom a public accountant is or was serving, that the Government or such authority or institution have or has a claim on such public accountant for moneys, securities for money, documents or other property, he shall draw up a statement of the particulars of the said claim, and if he is not a Collector, may send the statement to the Collector in whose jurisdiction such account is or was employed._ _(2) The Collector when he has himself recorded a statement as aforesaid may, and on receipt of such a statement from the Head of a Department of the Government, other authority or institution shall by writing under his official seal and signature, require the moneys, securities for money, documents or other property, to be delivered either immediately to the person bearing the said writing or to such other person on such date and at such place as the writing may specify. Such notice of demand may be served on the public accountant in the same manner as a summons is served on a defendant under the Code of Civil Procedure, 1908._ _(3) If the public accountant does not satisfy the demand, but appears and objects to the claim wholly or in part, the Collector shall enquire into the objection and record a decision.”_ _Sub-s. (1) of S.3 makes it clear that whenever the authority is satisfied that there is a claim on the public accountant for moneys, security for money, documents or other property, that a statement of particulars of such a claim is required to be drawn. The same is required to be served on the public accountant as provided in sub-s. 2 and if the public accountant does not satisfy the demand and objects to the claim, the Collector is required to enquire info the objections and record his decision as required by sub-s. (3). The provisions of S.3 can be invoked against the public accountant in respect of a claim for moneys, security for money, documents or other property. The expression ‘public accountant’ has been defined in S.2 (b) of the Act as follows:_ _“2(b) “public accountant” means a person, who, by reason of being, employed in the service of the Government or of any other authority or institution notified by the Government in this behalf from time to time in the Gazette, is entrusted with_ OP (KAT) No.123 of 2021 12 _the receipt, custody, possession or control of any moneys or securities for money, documents, or other property belonging to the Government or to any such authority or institution notified as aforesaid or who, in his capacity as Government servant, or servant of any such authority or institution, is entrusted with the receipt, custody, possession or control of any moneys or securities for money, document or other property belonging to any person or persons or to any institution for and on behalf of the Government or any such authority or institution, as the case may be.”_ _As we are not concerned in this case with the person employed by any authority or institution other than the Government, it is unnecessary to advert to them. We are concerned in this case with the appellant who was employed in the service of the Government as a Village Officer. The definition of the expression “public accountant” makes it clear that it is not every employee in the service of the Government that can be regarded as a public accountant. It is only an employee who is entrusted with the receipt, custody, possession or control of any moneys or securities for money, documents or other property belonging to the Government or who, in his capacity as Government servant is entrusted with the receipt, custody, possession or control of any moneys or securities for money, document or other property belonging to any person or persons or to any institution for and on behalf of the Government.Thus a Government servant becomes a public accountant (1) if he is entrusted with the receipt, custody, possession or control of any moneys or securities for money, documents or other property belonging to the Government or (2) if he is entrusted with the receipt, custody, possession or control of any moneys or securities for money, document or other property belonging to any person or persons or to any institution for and on behalf of the Government. What sub-s. (1) of S.3 contemplates is the claim on public accountant for moneys, securities for money documents or other property. Though sub-s. (1) of S.3 does not in terms speak of entrustment, as the claim can be enforced only against a public accountant, having regard to the definition of the expression ‘public accountant’ contained in S.2 (b) which renders an employer in the service of the Government a public accountant only when there is such entrustment, it has to be held that the claim contemplated by sub-s. (1) of S.3 on the public accountant can only be for the purpose of recovering the loss caused in respect of the moneys, securities for money, documents or other property entrusted to the public accountant either belonging to the Government or belonging to any person or persons or to any institution for and on behalf of the Government. If there is no entrustment of moneys, securities for money, documents or other property to the public accountant, the provisions of S.3 of the Act cannot be invoked. If the loss is caused by the conduct of a person employed in the service of the Government, by negligence or misconduct otherwise than in respect of moneys, securities for money, documents or other property entrusted to him, the remedy available to the State to recover the said loss is either by resorting to the pro visions of the Kerala Civil Services (Classification, Control and Appeal) Rules or by instituting an appropriate suit for recovering the loss or damages caused by the negligence or misconduct on the part of the Government servant. The procedure prescribed for_ OP (KAT) No.123 of 2021 13 _claiming the amount under S.3 is a summary one. No further appeal or revision is provided against the decision of the collector rendered in this behalf, because what the Act contemplates is only the recovery of loss in respect of moneys entrusted to the public accountant either belonging to the Government or belonging to any person or persons or to any institution for and on behalf of the Government. It is obvious that the provisions of the Act do not take into account the various types of liabilities of the Government servant that may be incurred on account of the negligence, misconduct etc. We have therefore no hesitation in taking the view that the provisions of the Act cannot be pressed into service where there is no entrustment of moneys, securities for money, documents or other property belonging to the Government or belonging to any person or persons or to any institution for and on behalf of the Government to a public accountant.”_ 9. The dictum laid down by the Division Bench of this Court in **Paramu Pillai** 's case supra [1989(1) KLT 224(DB)] has been subsequently followed by this Court in a decision in **Parameswaran v. State of Kerala [2009(4) KLT SN 23(case No.26)** para 9]. In **Paramu Pillai** 's case supra [1989(1) KLT 224 (DB)] the Division Bench dealt with a case of an incumbent, who was a Village Officer in Government service. The case of the Government was that the said Village Officer was entrusted with the responsibility of preparing records for acquisition of land comprised in Survey numbers of the Village concerned and that he had prepared the records and sketch showing the total extent of land to be acquired admeasuring 5 Acres and on that basis, the compensation was paid to the land owner on completion of the land acquisition. Subsequently, it came to the notice of the Government that the land acquired measured only 4 acres and 8 cents and hence OP (KAT) No.123 of 2021 14 the Government was thus constrained to pay additional compensation in respect of 92 cents though the said extent of property was not actually acquired only on account of the reason that the appellant Village officer had given wrong measurements of the land acquired as 5 acres. It is on this ground that the State Government had pressed into service the provisions contained in the Kerala Public Accountants Act, 1963. The Division Bench of this Court in the said judgment ultimately held that, in the facts of that case there is no question of entrustment of any moneys, securities or property to the Village officer concerned, whose duty was to prepare the records and sketch showing the total extent of land to be acquired. Hence on this ground it was held that the initiation of proceedings under the Kerala Public Accountants act, 1963 as against the said incumbent, who was holding the post of Village officer, was held to be ultra vires and illegal inasmuch as the said employee will not satisfy the definition of 'public accountants' in terms of Sec. 2(b) of the Act. 10. Sri.Kaleeswaram Raj, the learned counsel appearing for the petitioner/original applicant would contend that in the instant case,indisputably the original applicant was holding the post of Sub Registrar at the relevant period and the duty of the Sub Register is OP (KAT) No.123 of 2021 15 to examine the documents presented for registration in terms of the provisions contained in the Registration Act and to ensure that the requisite conditions of the Transfer of Property Act and Registration Act are fulfilled and also to ensure that the stamp duty is paid in terms of the provisions contained under the Kerala Stamp Act and the Rules framed thereunder. Further it is pointed out that at the relevant time, there were two fair values notified for the same class of property and the valuation was admittedly done on the basis of one such notified value and hence there was no dereliction of duty as Sub Registrar. The crucial argument made by the learned counsel for the petitioner is that the petitioner/original applicant as Sub Registrar has never been entrusted with any moneys, securities or property as understood in Sec. 2(b) and the duty of the Sub Registrar has no nexus whatsoever with entrustment of any moneys, securities or property as envisaged in Sec.2(b) of the Kerala Public Accountants Act, 1963 and hence, such an incumbent will not fulfill the definition of “Public Accountant” in Sec. 2(b) of the Act. Hence it is pointed out that going by the dictum laid down by the Division Bench of this Court in **Paramu Pillai** 's case supra [1989(1) KLT 224 (DB)], there is no question of pressing into service the provision contained in the Kerala Public Accountants Act, 1963. Hence it is OP (KAT) No.123 of 2021 16 pointed out that there is no question of resort to revenue recovery proceedings after finalizing the liability in terms of the Kerala Public Accountants Act in the facts and circumstances of the case. Per contra, the learned Senior Government Pleader has refuted these pleas and has contended that in the facts of this case, an incumbent discharging duties as Sub Registrar, will fulfill the definition of “Public Accountant” as per Section 2(b). The learned Senior Government Pleader contended that Public Accountant is a person entrusted with the receipt; custody, possession or control of any moneys or securities for money, documents, or other property belonging to the Government. The entrustment is coupled with a duty and responsibility and therefore the Sub Registrar has been assigned with the duty and responsibility of collecting the money/duty/fees legally due to the Government. Hence, the Sub Registrar satisfy the definition of Public Accountant. In the nature of the orders proposed to be passed by this Court in this case, we do not feel it necessary to decide the issue as to whether or not an incumbent discharging duties as a Sub Registrar will fulfill the definition of “Public Accountant” as per Section 2(b). However, it is declared that the legal principles on the subject have been already laid down by the Division Bench of this Court in _**Paramu Pillai**_ 's OP (KAT) No.123 of 2021 17 case supra and it is for the Tribunal to apply those legal principles to decide whether the post of Sub Registrar will fulfill the definition of “Public Accountant” as per Section 2(b). We refrain from deciding that issue as the Tribunal has not decided it in the instant case. 11. After hearing both sides, it is seen that in the instant case, the Tribunal, while rendering Ext.P7 final verdict, has not exclusively stated therein that the liberty is accorded to the respondents in the O.A to proceed in terms of the Revenue Recovery Proceedings under the Kerala Public Accountants Act (unlike the final order of the Tribunal at Ext.P2). Now the Government has issued Ext.P8 G.O dated 13-03-2021 (after the rendering of Ext.P7 final order by the Tribunal on 25-09-2020) not stating that they have followed the procedure in the Kerala Public Accountants Act or that they pressed into service the Kerala Public Accountants Act. What is stated in Ext.P8 is that the liability (presumably referred to in Annexure A1) shall be recovered from the petitioner by resort to Revenue Recovery Proceedings, in view of the enabling powers conferred under Ruling 6 of Rule 116 of Part III KSR. As mentioned herein above, Ruling No.6 of Rule 116 does not stipulate that the resort should be made to Revenue Recovery Proceedings, for realizing such liability or that resort to be made to the Kerala Public OP (KAT) No.123 of 2021 18 Accountants Act and then to proceed under the Revenue Recovery Proceedings Act. Hence, in case the petitioner has any legally justifiable grievances in respect of Ext.P8, then the same is independent cause of action, which is to be independently or separately agitated before the Tribunal as the court of first instance. Government may be under the impression, presumably on the basis of Ext.P2 verdict of the Tribunal in another case that either resort to the Revenue Recovery Proceedings or resort to Public Accountants Act with consequential resort to Revenue Recovery Proceedings is a legally permissible course of action. Hence the issue regarding the legality and correctness of Ext.P8 is to be challenged by the petitioner separately before the Tribunal as the said Tribunal is a court of first instance and it may not be right and proper for us to get into the aspects based on Ext.P8, as a supervisory court. It has to be borne in mind that the main challenge made by the petitioner is as against Ext.P7 verdict to the Tribunal to the limited extent, which has granted liberty to the respondents in the O.A to proceed in accordance with law. 12. Further, the petitioner has also raised contention that even otherwise in the facts and circumstances of this case, no liability could have been legally fastened against the petitioner in OP (KAT) No.123 of 2021 19 exercise of his his statutory duties as Sub Registrar for the simple reason that at the relevant time there is no specific fair value fixed for the subject property in terms of the provisions contained in the Act and the Rules. In that regard, the petitioner has raised a specific contention that at the relevant time during the registration of the documents in question, two fair values were fixed for the same classification and the petitioner had adopted one of the fair values, which is now sought to be raised on the basis of alleged liability. Further in the instant case, the Kerala Stamp Act has provided for explicit provision in terms of Sec. 45(b)(3) thereof for realization of any shortfall of stamp duty and registration fee and the said provision has not been pressed into service in this case at any point of time within the period of limitation. That in the special statute, viz., the Kerala Stamp Act under which the petitioner has to exercise her statutory powers, has provided for a special provision for recovery of alleged short fall of stamp duty and that the non invocation of the said remedy by the respondents herein would preclude their right from taking any further action in the matter. Since there was two fair values notified by the authorities for the very same class of property, adopting one of the fair values so statutorily fixed cannot be said to be an act amounting to create OP (KAT) No.123 of 2021 20 personal liability on the Sub Registrar concerned, etc. Hence, in view of these aspects, the petitioner's counsel vehemently argued that even otherwise the respondents in the O.A could not have legally fastened any liability against the petitioner and hence even resort to a civil suit was impermissible in law, etc. and further that these aspects of the matter have not been considered by the Tribunal. Since Ext.P8 appears to be a separate cause of action, we are of the firm opinion that it is for the petitioner to agitate all these issues before the Tribunal by instituting a separate original application mainly for the reason that Ext.P8 appears to be a separate cause of action. 13. After hearing both sides, we make it clear that the legal principles regarding the pressing into service of the Kerala Public Accountants Act, 1963, is covered in terms of the judgment of the Division Bench rendered in _**Paramu Pillai's case**_ supra in [1989(1) KLT 223(DB)]. On the petitioner filing a separate original application, the Tribunal may consider as to whether the provisions contained in Public Accountants Act could be legally pressed into service in the facts and circumstances of the case and more particularly, as to whether the petitioner who was holding the post of Sub Registrar would satisfy the definition of “Public Accountants” OP (KAT) No.123 of 2021 21 in terms of Sec. 2(b) of the said Act, etc, and consequently as to whether action under Sec. 3(1) is permissible. If it is held that the provisions contained in Kerala Public Accountants Act cannot be pressed into service in the instant case, then there is no question of consequently resorting to Revenue Recovery Proceedings for recovering the liabilities that could be fixed in terms of the Kerala Public Accountants Act. It is also well settled that it cannot be permissible to straightaway resort to revenue recovery proceedings without quantifying and finalizing the liabilities through a due process as permitted by a statute. It is only after finalizing of liability through such a due statutory process that the resort to the procedure of Revenue Recovery Proceedings is permissible, as it is by now well established that the provision contained in the Revenue Recovery Act is only the procedure for recovering the liabilities which are already finalized in accordance with law and the said provision does not confer any independent substantive powers for adjudication and finalization of the alleged liabilities. The contention of the petitioner that she could not have been made liable at all for the alleged lapses, in view of the aforementioned aspects may also be duly adverted to by Tribunal. The learned counsel for the petitioner submits on the basis of instructions that OP (KAT) No.123 of 2021 22 the petitioner would prefer the original application before the Tribunal within one month from the date of receipt of certified copy of the order. 14. Solely for the purpose of preservation of the subject matter of the lis, it is ordered that the operation and enforcement of Ext.P8 Go(Rt) No.205/2021/TAX dated 13-03-2021 shall be kept in abeyance for a period of two months from the date notified for receiving certified copy of this judgment or till orders are passed by the Tribunal on the stay application that may be moved by the petitioner in the O.A to be filed, whichever is earlier. However, it is made clear that in case the petitioner does not move an original application along with stay application before the Tribunal within a period of two months as above, then the above said interim order directing to keep in abeyance Ext.P-8 shall then stand automatically vacated, without any further orders from this Court. Hence, all these issues mentioned hereabove are left open to be raised by the petitioner before the Tribunal for its considered determination and decision thereon, in accordance with law. It is also made clear that the issue as to whether the liberty granted by the Tribunal in Ext.P7 could have been lawfully exercised by the respondents in the O.A in the facts and circumstances of the case, is also thus left open to be OP (KAT) No.123 of 2021 23 raised and decided by the Tribunal. With these observations and directions, the above original petition will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** **Sd/-** **A. BADHARUDEEN, JUDGE** amk OP (KAT) No.123 of 2021 24 ## **APPENDIX OF OP(KAT) 123/2021** ## **PETITIONER'S ANNEXURES :** **ANNEXURE-A1 TRUE COPY OF THE LIABILITY CERTIFICATE NO.E2-7320/2011 DATED 11.12.2017 ISSUED BY THE 3RD RESPONDENT TO THE APPLICANT ANNEXURE-A2 TRUE COPY OF THE ORDER NO.GO(RT) NO.85/2020/TAXES OF THE 1ST RESPONDENT HEREIN DATED 30.01.2020 ISSUED TO THE APPLICANT AND ITS TRANSLATION ANNEXURE-MA1 TRUE COPY OF THE CIRCULAR NO.31/85/FIN.TRIVANDRUM DATED 10TH APRIL, 1985 ISSUED BY THE GOVERNMENT OF KERALA FINANCE (PENSION -B) DEPARTMENT ANNEXURE-MA2 TRUE COPY OF THE ORDER IN OA (EKM) NO.608/2019 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, (ADDITIONAL BENCH AT ERNAKULAM) EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF THE OA ALONG WITH ITS ANNEXURES EXHIBIT P2 TRUE COPY OF THE MISCELLANEOUS APPLICATION NO.1162/2020 FILED ON 14.08.2020 ALONG WITH THE DOCUMENTS EXHIBIT P3 TRUE COPY OF THE REPORT DATED 10.05.2013 SUBMITTED VIDE LETTER NO.M.7823/2012 BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE LETTER NO.M.7823/2012 DATED 10.06.2013 WRITTEN BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE LETTER NO.M.7823/2012 DATED 30.03.2015** OP (KAT) No.123 of 2021 25 |**EXHIBIT P6**|**TRUE COPY OF THE LETTER DATED**| |---|---| ||**19.08.2016 WRITTEN BY THE 3RD**| ||**RESPONDENT TO THE 2ND RESPONDENT**| |**EXHIBIT P7**|**TRUE COPY OF THE ORDER DATED 25.09.2020**| ||**IN OA (EKM) NO.692/2020**| |**EXHIBIT P8**|**TRUE COPY OF G.O(RT) NO.205/2021/TAXES**| ||**DATED 13.03.2021 ISSUED BY THE FIRST**| ||**RESPONDENT**|