IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(C).No. 8089 of 2009(E) --------------------------------------- PETITIONER(S): ------------------------- 1. K.UDAYABHANU , VALUPARAMBIL, VALANJAVATTOM, KADAPRA, THIRUVALLA, PATHANAMTHITTA DISTRICT. 2. A.S.BIJU, EARATHU KIZHAKKATHIL, ELANTHOOR, KOZHENCHERRY, PATHANAMTHITTA DISTRICT. BY ADVS. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM), SRI.MATHEW SUNNY. RESPONDENT(S): ----------------------------- 1. THE DISTRICT COLLECTOR,. PATHANAMTHITTA. 2. THE ASSISTANT EXCISE COMMISSIONER, ALAPPUZHA. 3. THE WELFARE FUND INSPECTOR TODDY WORKERS WELFARE FUND,ALAPPUZHA. 4. THE TAHSIDLAR (RR) THIRUVALLA, PATHANAMTHITTA DISTRICT. 5. THE MANAGER DISTRICT CO-OPERATIVE BANK, MANNAR BRANCH, ALAPPUZHA DISTRICT. R1,R2 & R4 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R3 BY ADV. SRI.KOSHY GEORGE R5 BY ADV. SRI.P.K.VIJAYAMOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.8089/2009 E APPENDIX PETITIONERS EXHIBITS: P1: COPY OF THE ORDER NO.74-124/2000-2001 DTD. 28/02/2002 ISSUED BY THE 3RD RESPONDENT. P2: COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 4TH RESPONDENT DTD. 27/11/2002. P3: COPY OF THE ORDER GIVEN BY THE GOVERNMENT DTD. 20/01/2003. P4: COPY OF THE RECEIPT ISSUED BY THE 4TH RESPONDENT DT. 27/02/2003. P5: COPY OF THE JUDGMENT DTD. 9/06/2008 IN WP(C) NO.16980/2008. P6: COPY OF THE STATEMENT OF ACCOUNTS GIVEN BY THE 3RD RESPONDENT DTD. 31/07/2008. P7: COPY OF THE STATEMENT OF ACCOUNTS GIVEN BY THE 3RD RESPONDENT DTD. 5/09/2008. P8: COPY OF THE STATEMENT OF ACCOUNTS GIVEN BY THE 4TH RESPONDENT UNDER RIGHT TO INFORMATION ACT DTD. 12/12/2008. P9: COPY OF THE STATEMENT OF ACCOUNTS GIVEN BY THE 3RD RESPONDENT DTD. 5/02/2009. P10: COPY OF THE REPRESENTATION FILED BY THE FIRST PETITIONER BEFORE THE 3RD RESPONDENT DTD. 7/03/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.8089 of 2009 ------------------------------------------- Dated this the 5th day of October, 2010 J U D G M E N T ---------------------- Petitioners were the licensees of Toddy Shops Nos:74 to 124 of Alappuzha Excise Range, during the year 2000-2001. The 3rd respondent determined contributions payable to the Welfare Fund, by virtue of Ext.P1 order. Since the petitioners defaulted payment of amounts due thereunder, recovery steps under the Kerala Revenue Recovery Act was initiated on issuing Ext.P1 notice. On the basis of request made by the petitioners, the Government granted installment facility through Ext.P3 order, dt.20.1.2003. The stipulations contained therein was for payment of 20% of the amounts due before 28.2.2003 and to pay the balance in 30 equal monthly installments. According to the petitioners, the first installment of 20% along with the collection charges at the rate of 5% was paid as per W.P.(C).8089/09- -2- Ext.P4 receipt. It is stated that thereafter the petitioners had remitted the entire amounts due under Ext.P1 order. But still the revenue recovery steps continued. Being aggrieved the 1st petitioner approached this court in WP(C). No.16980/08. In Ext.P5 judgment, this court directed consideration and disposal of a representation filed by him and also directed to furnish him with a copy of the statement of accounts. Ext.P6 is the copy of statement of accounts furnished. Complaint was that no proper credit was given with respect to various payments effected by the petitioners. Therefore the discrepancies were brought to the notice of the 3rd respondent. Subsequently another statement of accounts as per Ext.P7 was issued, in which it is mentioned that interest to the tune of Rs.4,87,849/- is outstanding payment. Since Ext.P7 does not reflected all payments effected, the petitioners have approached the 4th respondent for getting details regarding payments made on different dates. Ext.P8 is the details furnished by the 4th respondent. On the basis of Ext.P8 the 1st petitioner again W.P.(C).8089/09- -3- approached the 3rd respondent seeking corrections, and Ext.P9 is the reply given. 2. The statement of accounts appended to Ext.P9 revealed that payments effected by the petitioners to the tune of Rs.2,02,695/- was remitted by the 4th respondent to the 5th respondent Bank on 30.6.2003. But the 5th respondent Bank had transferred the amount to the credit of the 3rd respondent, only on 4.11.2006, i.e., after 3½ years. Since the payments were not given credit at the appropriate time, huge liability of interest and penal interest had accrued in the account, causing heavy burden to the petitioners. Grievance of the petitioners is that inspite of bringing notice of the above facts, the 3rd respondent is not prepared to rectify the accounts. According to the petitioners, they have remitted the entire amounts due, along with 5% collection charges and there is no outstanding liability. But the 3rd respondent is not issuing clearance certificate for getting release of the title deeds under deposit with the 2nd respondent. Since W.P.(C).8089/09- -4- representations filed in this regard was not considered, this writ petition is filed. 3. In the counter affidavit filed by the 3rd respondent it is contended that the allegation of the petitioner is not true. Since the remittances reflected in Ext.P8 had not been accounted to the credit of the 3rd respondent at the appropriate dates, there is still arrears and the petitioner was treated as a defaulter. It is stated that, on reconciliation of statements, it was realised that the amount collected by the Tahsildar during the year 2003 was remitted to the District Co-operative Bank, Mannar Branch (5th respondent) during 2003 itself. But the 5th respondent had failed to transfer the amounts to the credit of the Welfare Fund Board. The credit was effected only after long lapse, on the basis of specific requests made by the 3rd respondent. 4. It is evident that, relevant credits regarding payments effected by the petitioners were given, only with effect from the date on which the 5th respondent had W.P.(C).8089/09- -5- transferred the amounts in favour of the Welfare Fund Board. According to the 3rd respondent, the default was on the part of the 5th respondent and the 5th respondent alone is responsible for not transferring the amounts in favour of the 3rd respondent. As per the statement maintained by the 3rd respondent, amounts are still outstanding payment from the petitioners and they were treated as defaulters, is the contention. 5. In a statement filed by the 4th respondent it is mentioned that the petitioners have committed default in payment of installments as allowed by the Government, and therefore recovery steps were proceeded against. Learned Government Pleader appearing on behalf of 4th respondent had brought to my notice that a circular has been issued by the Chief Welfare Fund Inspector of the Kerala Toddy Workers Welfare Fund Board, instructing the officers concerned to open Bank accounts with the District Co- operative Banks in all districts for remittance of contributions, and directing to forward monthly statement W.P.(C).8089/09- -6- of such remittances to the Head Office. 6. The 5th respondent in their counter affidavit conceded that the 3rd respondent was maintaining an account with the Head Office of the Bank since 1.1.1993 onwards. It is also admitted that the 4th respondent had made various remittances on different dates during the year 2003, totalling to a sum of Rs.57,000/-, in the account of the 3rd respondent. The Branch Manager has transferred those amounts to the Head Office on the same dates itself. But it is admitted that the amounts were kept at the Head Office in a 'Suspense Account', since the account of the Welfare Fund remained closed with effect from 16.11.2002 onwards. 7. Considering the entire facts and circumstances as revealed from contentions of various parties, it is clear that remittances made by the petitioners pursuant to the revenue recovery steps were not given credit at the appropriate time. It is conceded by the 3rd respondent that if all the remittances were given credit on the appropriate dates of payments, the liability of the petitioners would have W.P.(C).8089/09- -7- been discharged. The arrears now alleged was only due to non-crediting of the payments effected by petitioners at the appropriate time. No default can be attributed against the petitioners with respect to lack of giving credit to their payments at the appropriate time. Therefore the petitioners are entitled to get a discharge with respect to the liability. Consequently they are entitled for a clearance certificate and return of the title deeds deposited. 8. If the 3rd respondent Board is suffering any loss due to the default on the part of, either the 4th respondent or the 5th respondent in not transmitting the amounts at the appropriate time, it is for the 3rd respondent to work out remedies as permissible under law against those who are responsible. Merely because the 3rd respondent is entitled to resort to such remedies, the petitioners could not be held liable and they could not be restrained from getting clearance certificate and return of title deeds. 9. Under the above circumstances, the writ petition is disposed of directing the 3rd respondent to issue W.P.(C).8089/09- -8- clearance certificate to the petitioners facilitating them to get release of the title deeds from the 2nd respondent. It is made clear that issuance of clearance certificate in favour of the petitioners will not affect the rights if any available under law to the 3rd respondent for proceeding against respondents 4 and/ or 5, whoever is responsible for the delay caused in transmitting the amounts remitted by the petitioners. C.K.ABDUL REHIM, JUDGE. okb