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2017 DIGILAW 389 (KER)

P A SATHYAN S/O. AYYAPPU v. STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE

2017-02-22

SHAJI P.CHALY

body2017
JUDGMENT : This is a writ petition filed by the petitioner to declare that the alleged liability of the petitioner towards payment to the Kerala Toddy Workers' Welfare Fund stands discharged as on 05.02.2010, and no amount is liable to be recovered from the petitioner, and further to issue a writ of certiorari to quash Exts.P3 and P7 demanding amounts from the petitioner, and issuing direction to recover the amount by selling off the property of the petitioner, respectively. Material facts for the disposal of the writ petition are as follows: 2. Petitioner was a licensee for conducting Toddy Shop Nos.85 to 100 of Thamarassery Range during the financial year 1999-2000. Alleging arrears in payment on account of employer's contribution towards Kerala Toddy Workers' Welfare Fund, proceedings were initiated against the petitioner under the provisions of the Kerala Revenue Recovery Act. Substantial amounts were paid by the petitioner, which itself would have satisfied the debt, but respondents 2 to 4 caused auction sale of the property of petitioner's sister, which was offered as security to the transaction. It is submitted, what all amounts due from the petitioner was realized and he was free from liabilities from the date of confirmation of the said auction sale. Authorities are yet to refund the surplus amount collected while auctioning the property, together with interest from 05.02.2010. 3. It is also submitted that, on account of gross negligence and lack of co-ordination between respondents 2 to 4, amounts remitted by the petitioner, even those collected upon auction sale of property offered as security for transaction, were not properly accounted or credited against proper accounts. As a result, petitioner is still wrongly listed as a defaulter with huge liability with interest at high rate and costs piling upon same for many years now. According to the petitioner, Exts.P1, P2, P4 and P5 prove grave mistakes committed by respondents 2 to 4, and that the debt of the petitioner was discharged long ago. It is also stated that Exts.P3 and P7 are issued wrongly, alleging that amounts are still pending on the account of the petitioner, suggesting coercive action against petitioner's immovable property situate in Padichira Village. Authorities initially gave an impression to the petitioner that Exts.P3 and P7 are issued by mistake, and so petitioner need not be worried about the same. It is also stated that Exts.P3 and P7 are issued wrongly, alleging that amounts are still pending on the account of the petitioner, suggesting coercive action against petitioner's immovable property situate in Padichira Village. Authorities initially gave an impression to the petitioner that Exts.P3 and P7 are issued by mistake, and so petitioner need not be worried about the same. But, later, they took a view that they have no way other than to pursue with action based on Exts.P3 and P7. It is the contention of the petitioner that, even though frequent pleas and representations were made by the petitioner including Ext.P6, all failed to fetch any result. 4. It is also stated, citing pendency of arrears, authorities are illegally refusing to release the title documents of the sole property of the petitioner, wherein he is residing in a temporary shed. Since documents are withheld citing incorrect reasons, petitioner is unable to avail loans or to claim benefits under various Government schemes for constructing a permanent house. These are the background facts projected by the petitioner to secure the reliefs sought for in the writ petition. 5. Fourth respondent has filed a counter affidavit stating that, to determine the Welfare Fund contribution, notices for enquiry under Sec.8 of the Kerala Toddy Workers' Welfare Fund Act, 1969 were issued to the petitioner and the joint-licensee, Trade Union representatives and toddy workers on 07.07.2000. Though the notices were received, the licensees did not appear for enquiry. The Trade Union representatives and workers were present and adduced their evidence to the effect that the petitioner and the joint-licensee conducted toddy business, and they were contractors of T.S.Nos.85-100 of Thamarassery Range, during the year 1999-2000. Accordingly, a pre-assessment notice was issued stating that an amount of Rs.8,97,727/- is to be determined as welfare fund. They did not file any complaints and Final Determination order was issued on 20.10.2000, showing the welfare fund dues collected, welfare fund balance to be paid along with interest determined. Accordingly, an amount of Rs.2,30,452/- was fixed as the balance remaining due from the licensees without any interest. Since the petitioner failed to remit the dues, Revenue Recovery Certificate was issued to recover an amount of Rs.2,42,158/- and interest for Rs.2,30,452/- @ 18% with effect from 01.02.2001. From the letters of the revenue authorities, it was understood that amounts were collected from 30.06.2001 to 11.03.2005, totally amounting to Rs.1,30,294/-. Since the petitioner failed to remit the dues, Revenue Recovery Certificate was issued to recover an amount of Rs.2,42,158/- and interest for Rs.2,30,452/- @ 18% with effect from 01.02.2001. From the letters of the revenue authorities, it was understood that amounts were collected from 30.06.2001 to 11.03.2005, totally amounting to Rs.1,30,294/-. However, the Revenue Department wrongly credited amounts totalling to Rs.90,130/- to the accounts of the Kerala Abkari Welfare Fund Board, and the procedures to re-collect it from the Abkari Welfare Fund Board is still going on. 6. It is also stated that, to collect the welfare dues as a part of revenue recovery proceedings, 0.8256 hectares of land of the joint-licensee situate in Re-survey No.757/3 of Pulpally Village was attached and auctioned on 08.01.2010 for an amount of Rs.4,10,000/- and remitted an amount of Rs.62,000/- as initial payment of auction on 15.01.2010. The balance amount of Rs.3,48,000/- deposited at Bathery Sub Treasury by the revenue authorities. After confirmation of the auction, Rs.3,27,500/- was credited to Kerala Toddy Workers' Welfare Fund Board account on 24.02.2012. Therefore, it is submitted that, considering all the remittances which is still not received and yet to be accounted to Kerala Toddy Workers' Welfare Fund Board, an amount of Rs.30,947/- is remaining due from the petitioner as on 31.05.2016 and from 31.05.2016 onwards till the payment date, petitioner is bound to pay 18% interest for the P.F. due of Rs.14,407/- apart from collection charges. 7. A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition and predominantly contending that the incorrect credit made by the respondents to the Kerala Abkari Workers Welfare Fund Board has created the situation, to which act the petitioner is in no way responsible to the callous negligence on the part of the respondents in not crediting the amount correctly to the account of the Kerala Toddy Workers' Welfare Fund Board, and therefore, petitioner cannot be mulcted with any liability of either principal, interest or collection charges. Petitioner has also a case that after adjusting all the amounts due to the Welfare Fund Board, substantial amount is due to the petitioner from the respondents. 8. Heard learned counsel for the petitioner, learned Government Pleader and the learned Standing Counsel appearing for the 4th respondent. Perused the documents on record and the pleadings put forth by the respective parties. 9. 8. Heard learned counsel for the petitioner, learned Government Pleader and the learned Standing Counsel appearing for the 4th respondent. Perused the documents on record and the pleadings put forth by the respective parties. 9. The sole question to be considered is whether the petitioner is liable to make any payment to the Kerala Toddy Workers' Welfare Fund Board, as stated in Exts.P3 and P7. The discussion made above and the submissions made in the counter affidavit will unequivocally establish that the whole issue has occurred consequent to the false credit of the amount by the recovery authorities to the account of the Kerala Abkari Workers Welfare Fund Board, instead of Kerala Toddy Workers' Welfare Fund Board. Petitioner cannot be made liable for the irresponsibility, or the negligence caused by the officers of the Revenue Department. 10. Therefore, taking into account the facts and circumstances and reckoning the pleadings from the counter affidavit filed by the 4th respondent, I have no hesitation to hold that there is no amount due from the petitioner to the Kerala Toddy Workers' Welfare Fund Board, if the amount wrongly credited is adjusted to the Kerala Toddy Workers' Welfare Fund Board. Learned Government Pleader as well as the learned counsel appearing for 4th respondent submitted that the adjustment to be made is not so far calculated. However, I am of the considered opinion that the amounts were realized by way of recovery proceedings and deposited long back, and having not done the quantification exactly by the statutory authorities, the petitioner cannot be made responsible. If at all any interest is due, the same is to be adjusted from the account of the wrong credit made. Petitioner cannot be penalized for a wrong committed by a statutory authority. It is also clear from the nature of pleadings put forth by the 4th respondent that, substantial amounts were deposited wrongly in the account of another Welfare Fund Board constituted by the Government. The said Board could have easily located the false credit made by verifying the details. It is surprising to note that the audit also failed to point out the excess amount credited. Any how, no manner of liability can be cast upon the petitioner for the administrative commotion created by the statutory authorities. 11. The said Board could have easily located the false credit made by verifying the details. It is surprising to note that the audit also failed to point out the excess amount credited. Any how, no manner of liability can be cast upon the petitioner for the administrative commotion created by the statutory authorities. 11. Therefore, there will be a direction to the competent among the respondents to return the title documents of the petitioner's property situate in Survey No. 358/1A-1A-1A of Padichira Village in Sulthan Bathery Taluk to the petitioner, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment. In the meantime, respondents shall quantify the exact amount that is to be adjusted from the wrong credit made to the Kerala Abkari Workers' Welfare Fund Board, and if any amounts are due from the respondents to the petitioner, the same shall also be released. 12. If the petitioner has any grievance still with respect to the amounts due to the petitioner from the respondents, petitioner will be at liberty to submit suitable representation before the 4th respondent, who will consider the same in accordance with law, at the earliest, and at any rate, within a month from the date of receipt of such representation. The writ petition is allowed accordingly.