W.A. No. 509 of 2009

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937** ## **WA.No. 509 of 2009 ( )** **----------------------AGAINST THE JUDGMENT IN WP(C) 20277/2003 DATED 22-11-2005 --------------------** ## **APPELLANTS/RESPONDENTS 1 & 2 IN WP(C) :** **---------------------------------------------------------------------** **1. THE TAHSILDAR, TALUK OFFICE, KUTTANAD.** ## **2. THE DISTRICT COLLECTOR, ALAPPUZHA.** ## **BY SR. GOVT. PLEADER SRI. P.I. DAVIS** ## **RESPONDENTS/PETITIONER & RESPONDENTS 3 TO 29 IN THE WP(C) :** - **-------------------------------------------------------------------------------------------------------** **1. M.R.BALAKRISHNAN, S/O. RAGHAVAN, PADINJARECHIRA VEETTIL, CHENNANKARI, KAINAKARY, SOUTH VILLAGE, KUTTANAD.** ## **2. THE WELFARE FUND INSPECTOR OFFICE OF THE WELFARE FUND INSPECTOR, ALAPPUZHA.** ## **3. K.S.SHAJI KUMAR,** **ATHIRAPALLY, CHAMPAKULAM.** ## **4. BUDDAN,** - **MANISADANAM, CHEKKIDIKAD P.O., EDATHUA.** **5. PURUSHOTHAMA PANICKAER, GOKULAM, THAYAIKARAY P.O.** ## **6. HARIKUMAR,** **ASHAPARAMBU, KODUPAMANA P.O.** **7. PUSHPANGADAN, THAIPARAMBU, PALLAUKADI P.O.** **8. RAJENDRAN, ULLADAPARAMBU, THATHAPPALLY P.O.** **...2/-** ## **WA.No. 509 of 2009 ( ) -2-** **9. MOHANDAS, NARANATHU, THAKAZHY P.O.** **10. P.D. THANKACHAN, PUTHUVELIL, CHATHURTHYARI P.O.** ## **11. SALIMKUMAR, ELAVASSARY, MUTTAR P.O.** ## **12. OMANA, MANNAMPARAMBU, MUTTAR P.O.** **13. P.K. SATHEESAN, PARAPARAMBIL, MUTTAR P.O.** **14. C.V. RAJESH, ASHA SADANAM, KIDANGARA.** **15. THANKAPPAN, KOMALAVILASAM, VELIYANADU P.O.** ## **16. JAGADEESH,** **MUNDUCHIRA, KIDANGARA P.O.** ## **17. V. SASI,** **PUTHENPARAMBIL, VALADI P.O.** ## **18. BIJU,** **VIJAYA BHAVANAM, THURUTHY, VAZHAPALLY (E) P.O., CHANGANASSERY.** ## **19. PRAHLADAN, NADUVATHUSSARY, KANNADY, PULIMKUNNU P.O.** **20. N.P. BABU, VALPATHIL, KUNNUMMA, KAVALAM P.O.** ## **21. PRASAD,** **NALPATHIL, KUNNUMMA, KAVALAM P.O.** **22. ANTONY THOMAS, ITHITHARA, KUNNUMMA, KAVALAM P.O.** **23. GIGI VARGHEESE, VALLIYAKULAM, KUNNUMMA, KAVALAM P.O.** **...3/-** ## **WA.No. 509 of 2009 ( ) -3-** **24. THILAKAPPAN, KADUVATHISSARY, KANNADY, PULIMKUNNU P.O.** **25. SASIDHARAN, SUBHADRA BHAVANAM, PULIMKUNNU P.O.** **26. C.B. SHAJI, MALAYIRAM, CHATHURTHIYAKRY P.O.** **27. GURUDAS, ARUPATHINCHIRA, CHATHURTHIYAKRY P.O.** **28. JAYAPRAKASH, MUTTEL, KUTTAMANGALAM P.O.** **BY SENIOR ADVOCATE SRI.C.C.THOMAS BY ADVS. SRI.JOHN VARGHESE SRI.K.C.JAYAKUMAR SRI.M.B.ANISH BABU SRI.P.SREEKUMAR SRI.R.MURALIDHARAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11-12-2015, THE COURT ON 21-01-2016 DELIVERED THE FOLLOWING:** **Mn** **ASHOK BHUSHAN, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.509 of 2009 ---------------------------------------- Dated this the 21[st] day of January 2016 ## **J U D G M E N T** ## **Shaffique,J** This appeal has been remitted back to this Court by the Supreme Court for fresh disposal, in accordance with law, with the following observations. _“7. In our opinion, in these types of cases, the High Court should have taken up the matters individually and decided whether the State was justified in issuing the demand notice(s) for the purpose of collection charges as well as service charges under Rules 4 and 5 of the Rules._ _8. In view of the above, we set aside the judgment and order passed by the High Court and remand the matters to the High Court for a fresh disposal in accordance with law. We also request the High Court to take the cases individually instead of clubbing all the matters and look into the facts of each case and take a positive decision on the pleadings adduced by both the parties.”_ 2. The Revenue Authorities of the State, who are respondents 1 and 2 in the writ petition, are the appellants. The W.A.No.509/2009 2 writ petition was filed by the 1[st] respondent herein, who is hereinafter referred to as 'the petitioner', inter alia contending that the revenue recovery proceedings initiated against him, by sale of his property, is bad in law. 3. The short facts involved in the writ petition would disclose that the petitioner contended that he, along with respondents 4 to 29, are jointly liable to pay certain amount as contribution to the Toddy Workers Welfare Fund Board in respect of various toddy shops in which they were employers. The aggregate amount for toddy shop Nos.1 to 142 for the year 1999-2000 came to Rs.11,32,859/-. When the amounts remain unpaid, demand was made by the Tahsildar as per Ext.P3. There was a proposal to attach and sell the property of the petitioner. This was followed by Ext.P4 sale notice. The petitioner also produced the demands notices issued by way of Exts.P5 and P6. Petitioner submitted Ext.P7 representation requesting the 1[st] respondent to proceed against other persons also, who were conducting the toddy shops. But, since no action has been taken in the matter, the writ petition has been filed seeking the following reliefs: W.A.No.509/2009 3 _“1. Issue a writ of certiorari or any other writ order or direction calling for the records leading to Ext.P4 sale notice and quash the same as illegal and unsustainable;_ _2. Issue a writ of mandamus directing the 3[rd] respondent to quantify the actual amount due in respect of toddy shop Nos.1 to 142 after deducting the remittances made by the petitioner and respondents 4 to 29 who are the employers of the said shops;_ _3. Issue a direction to respondents 1 to 3 to proceed against respondents 4 to 29 for realization of the amounts due before proceeding with the sale of the petitioner's property vide Ext.P4._ _4. Issue a writ of mandamus directing respondents 1 and 2 to consider and dispose of Exts.P7 and P8 after hearing the petitioners and;_ _5. to grant such other reliefs sought for under the circumstances of the case.”_ 4. The learned Single Judge, relying upon the judgment in **Bhaskaran v. Sub Registrar** _[2005(3) KLT 150]_ issued the following directions in paragraph 2 of the impugned judgment. W.A.No.509/2009 4 _“ 2. In the circumstances, the writ petition is disposed of with the following directions:_ _(i) The Tahsildar is directed to revise adjustments made towards C.C and adjust the entire payments made towards liability due from the petitioner i.e. towards toddy workers welfare fund and interest and give a statement to the petitioner with copy of the Welfare Fund Inspector._ _(ii) There will be a direction to 3[rd] respondent to reduce interest to 12% for period of default till date of payment, if liability with reduced interest is paid on or before 15-1-2006. The 3[rd] respondent will re-work interest at 12% and demand balance after reckoning payments made by the petitioner and issue demand immediately on production of this judgment._ _(iii) Petitioner is granted time till 15-12006 to settle the entire balance. However, if payments are not made before 15-1-2006 then reduction in interest granted herein will stand vacated and respondents will be free to recover the entire balance with full rate of interest._ _iv) Collection charges recovered will be adjusted towards liability as directed above.”_ 5. The main grievance raised by the appellants is with reference to the direction that the “collection charges recovered W.A.No.509/2009 5 should be adjusted towards liability”. It is argued that when amounts were recovered by revenue recovery proceedings, necessarily collection charges are to be recovered. It is also contended that no such contention has been urged by the petitioner to waive the collection charges. 6. It is apparent from the facts involved in the matter that no contention has been urged on behalf of the petitioner regarding waiver or adjustment of collection charges. We have considered this issue in a connected writ appeal, W.A.No.1619/2008, wherein, after referring to various judgments, **Kadeeja Beevi v. Kerala Financial Corporation** _[1985 KLT 741],_ **Bhaskaran** (supra), **David v. Kerala State Financial Corporation** _[1988 (1) KLT 585]_ and **Mohan Roy v. State Bank of Travancore** _[1990(2) KLT 120],_ we have held that when recovery is effected through revenue recovery proceedings, the revenue authorities are entitled to recover the collection charges, as applicable under Rule 4 and 5 of the Kreala Revenue Recovery Rules. 7. In the case on hand, the petitioner had challenged the liability to pay, which, apparently, cannot be adjudicated by this W.A.No.509/2009 6 Court. However, the learned Single Judge granted time to pay the amount after adjusting the amount remitted as per the interim directions issued by this Court. There was a direction to reduce the rate of interest, which we do not want to interfere with, as the learned Single Judge had directed reduction of interest on the peculiar set of facts. However, when the amounts have been recovered after initiating revenue recovery proceedings, necessarily the revenue authorities are entitled for collection charges at the specified rates. Even the interim payment of Rs.4 lakhs have been remitted to the revenue authorities, as per the directions of this Court. In the result, the writ appeal is partly allowed, setting aside Clauses (i) and (iv) of the operative portion of the judgment. It is made clear that the petitioner is liable to pay collection charges for the amount recovered by revenue recovery proceedings. (sd/-) **(ASHOK BHUSHAN, CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** True Copy PA to Judge jsr