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2016 DIGILAW 88 (KER)

State of Kerala v. Shibu Kumar

2016-01-21

A.M.SHAFFIQUE, ASHOK BHUSHAN

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JUDGMENT : A.M. Shaffique, J. 1. 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 notices 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 Writ Petition has been filed by the 1st respondent herein seeking the following directions. “(i) call for records leading to issuance of Exhibits P-1 and P-2 and issue a writ of certiorari to quash Exhibits P-1 & P-2 Notices. (ii) issue a writ of mandamus or any other appropriate writ or order, directing the respondents 2 and 5 to consider and pass appropriate orders on Ext.P-3 representation. (iii) declare that the 5th respondent have no authority to make requisition to Collector, to initiate Revenue Recovery proceedings for arrears of loan, which will not come under the purview of Revenue Recovery. Or in the alternative direct the 5th respondent to give sufficient time and installment facility to the petitioner to pay of the actual due amount, after considering Ext.P-3. (iv) issue such other writ, order or direction, which this Hon’ble Court may deem fit and proper on the facts and circumstances of this case and in the interest of justice.” 3. The averments in the Writ Petition disclose that the petitioner availed a loan from Bank of India. Revenue recovery proceedings were initiated against him. Ext.P2 dated 14.10.2009 is the notice issued under S.7 of the Revenue Recovery Act (hereinafter referred to as ‘the Act’) demanding an amount of Rs. 2,45,212/- with interest @ 11% and collection charges of 5%. Petitioner submitted a representation to the bank requesting for statement of account. Revenue recovery proceedings were initiated against him. Ext.P2 dated 14.10.2009 is the notice issued under S.7 of the Revenue Recovery Act (hereinafter referred to as ‘the Act’) demanding an amount of Rs. 2,45,212/- with interest @ 11% and collection charges of 5%. Petitioner submitted a representation to the bank requesting for statement of account. According to him, he was not liable to pay any of the amount as shown in Ext.P2 alleging that the instalments were not properly remitted. In fact, no other challenge had been made by the writ petitioner. 4. Learned Single Judge, however, observed that the petitioner should be given instalment facility. The first instalment should be paid on or before 25.04.2009 and the balance in succeeding months. When it was pointed out that collection charges have been recovered from the petitioner, direction was issued to give back the collection charges. 5. It is contended by the appellant that if the amount is recovered by revenue recovery proceedings, collection charges can be recovered and the learned Single Judge was not justified in directing refund of collection charges. 6. It is clear from various judgments of this Court especially Kadeeja Beevi vs. Kerala Financial Corporation, 1985 KLT 741 , Village Industries Development Centre vs. Kerala Khadhi and Village Industries Board, 1996 (2) KLJ 253 and Bhaskaran vs. Sub-Registrar, 2005 (3) KLT 150 that collection charges can be recovered only if the amount is recovered by revenue recovery proceedings. 7. In the case on hand, this Court had only given instalment facility to the petitioner. Since the payments were made during revenue recovery proceedings, necessarily he will be under obligation to pay collection charges as well. Hence the learned Single Judge was not justified in directing refund of collection charges. When the amount due is recovered through revenue recovery proceedings, it is open for the revenue authorities to collect collection charges. 8. In the said circumstances, we set aside that part of the judgment which directs that collection charges shall not be recovered from the petitioner. This Writ Appeal is allowed to the above extent.