ANTONY v. TAHSILDAR, ALWAYE — 1975 DIGILAW 81 (KER)

Judgment :- 1. The Tahsildar, Alwaye received a certificate issued by the Collector of Coimbatore under S.3 (1) of the Indian Revenue. Recovery Act stating that a sum of Rs. 4158.83 being sales tax arrears is due from the petitioner and requesting the recovery of the same by the District Collector, Ernakulam as if it were an arrear of land revenue which had accrued in his district and for remitting it to the office of the Commercial Tax Officer, Pollachi. The said certificate of the Collector, Coimbatore was forwarded to the Tahsildar by the District Collector, Ernakulam along with an authorisation letter dated 312 71 to collect the amount. On receipt of the same revenue recovery proceedings under the Kerala Revenue Recovery Act was initiated by the Tahsildar who directed the village officer, Manikamangalam to realise the amount from the defaulter. Notice under S.7 of the Kerala Revenue Recovery Act was also issued by the Tahsildar to the defaulter to be served through the village officer.' 2. On receipt of the same the petitioner defaulter has filed this writ petition seeking a writ of mandamus restraining the respondents, namely, the Tahsildar, Alwaye and village officer, Kalady from taking proceedings under the Central Revenue Recovery Act or the Kerala Revenue Recovery Act against the petitioner for the realisation of the alleged sales tax arrears due from the petitioner under the Tamilnad General Sales Tax Act and for consequential reliefs. 3. The main contentions that were urged before me in support of the O.P. by Sri K. N. Narayana Pillai, learned counsel for the petitioner are that the power conferred by S.3 (3) of the Central Revenue Recovery Act on the Collector who receives a certificate for the recovery of tax, cannot be delegated to any one else and also alternatively that even assuming that such power can be delegated under S.73 of the Kerala Revenue Recovery Act, in the present case there has not been any proper delegation of such functions. I think there is much force in these contentions. It is, no doubt, true that the Collector of the concerned district in Tamilnad has issued a certificate to the District Collector, Ernakulam under the provisions of S.3 and 5 of the Revenue Recovery Act, 1890. I think there is much force in these contentions. It is, no doubt, true that the Collector of the concerned district in Tamilnad has issued a certificate to the District Collector, Ernakulam under the provisions of S.3 and 5 of the Revenue Recovery Act, 1890. The Collector, Ernakulam is, therefore, competent to recover the amount concerned from the petitioner and this can be done under the provisions of the Kerala Revenue Recovery Act when these provisions are read with the provisions of the Revenue Recovery Act, 1890. These are clear from the statutes concerned and if any authority is required for that there is a Division Bench decision of this court in Varkey v. Tahsildar, Muvattupuzha Taluk (ILR.1974-2 Ker. 249). However, the power of recovery could be exercised only by the Collector of the district to whom the certificate contemplated under S.3 of the Central Revenue Recovery Act, 1890 has been sent. S.3 of the said Act is as follows: "3(1). Where an arrear of land revenue, or a sum recoverable as an arrear of land revenue, is payable to a collector by a defaulter being or having property in a district other than that in which the arrear or the sum is payable the collector may send to the collector of that other district a certificate in the form as nearly as may be of the schedule, stating (a) the name of the defaulter and such other particulars as may be necessary for his identification, and (b) the amount payable by him and the account on which it is due. (2) The certificate shall be signed by the collector making it or by any officer to whom such collector may, by order in writing, delegate this duty and save as otherwise provided by this Act, shall be conclusive proof of the matters therein stated. (3) The collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land revenue which had accrued in his own district." 'Collector' is defined in the said Act as meaning the chief officer in charge of the land revenue administration of a district. There is also no provision in the said Act for delegation of power of the Collector to a subordinate. There is also no provision in the said Act for delegation of power of the Collector to a subordinate. No doubt, under the Kerala Revenue Recovery Act the powers of the Collector therein could be delegated to officers subordinate under S.73 of the Kerala Act. S.73 which is under the heading 'delegation of powers of the collector' is as follows: 73. Delegation of powers of the Collector. The Collector may authorise any officer to exercise any of the powers or perform any of the functions conferred or imposed on him by this Act." 'Collector' is defined under the Kerala Act to mean the District Collector or any other officer appointed by the government by name or by virtue of his office to exercise the powers and perform the functions of a Collector under that Act. In the absence of delegation in the Central Act, I do not think it would be valid for the Collector to delegate his powers of collection of tax even though the process employed is a process under the Kerala Act to any officer subordinate to him. 4. I might in this connection refer to a decision of the Calcutta High Court in Bulu Rani Seal v. Member, Board of Revenue, West Bengal (AIR. 1962 Cal. 499). On the basis of the principles laid down in the decision I would hold that the provisions of the Kerala Revenue Recovery Act in the matter may provide the auxiliary machinery but not the substantive rights. 5. The Tahsildar who is taking proceedings for collection of the amount is not a Collector as defined under the Revenue Recovery Act. The certificate concerned has originated and is initiated under the Central Revenue Recovery Act, and therefore though the process of collection can be under the Kerala Revenue Recovery Act, as per S.3 and 5 of the Central Act, an officer who is competent to make the collection under the Central Revenue Recovery Act can alone proceed to recover the tax under the same. Mr. Narayana Pillai is also certainly right in contending that even assuming the Tahsildar could collect, there is no delegation of the powers of the Collector to the Tahsildar under S.73 of the Kerala Act in the instant case. Mr. Sankaran has produced before me an authorisation letter sent by the Collector to the Tahsildar, which only asks the Tahsildar to collect the amount. Mr. Sankaran has produced before me an authorisation letter sent by the Collector to the Tahsildar, which only asks the Tahsildar to collect the amount. That is not a delegation of the Collector's function to the Tahsildar. Under S.73 of the Kerala Revenue Recovery Act the Collector will have to authorise any officer to exercise any of the powers or perform the functions conferred or imposed on him under the Act. No doubt, any of the powers or any of the functions conferred or imposed on him can be delegated, but there should be a proper delegation which would indicate what exactly are the powers which are conferred on the Collector that have been delegated or what are the functions that are imposed on him that had been delegated to a subordinate officer. The letter shown by the government pleader would not satisfy this. It does not appear from it that there has been any delegation of any of the powers or functions of the Collector to the Tahsildar who has initiated proceedings in this case. 6. Therefore, I allow the O. P. and issue a writ of mandamus restraining the respondents from taking proceedings under the Revenue Recovery Act, 1890 or the Kerala Revenue Recovery Act against the petitioner for the realisation of the sales tax said to be due from him under the Tamilnad General Sales Tax Act. There will be no orders as to costs. Allowed.