IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WA.No. 2428 of 2005() --------------------- AGAINST THE JUDGEMENT IN OP.4976/1996 Dated 30/08/2005 .................... APPELLANT(S): 1ST RESPONDENT: ----------------------------- THE INSPECTOR, TODDY WORKERS WELFARE FUND BOARD, BROADWAY, ERNAKULAM, COCHIN-31. BY ADV. SRI.K.HARILAL, SC, KTWWF BOARD SRI.KOSHY GEORGE,SC,KTWWFB,(TODDY WORKE RESPONDENT(S): --------------- 1. M.S. VIJAYAN, AGED 34 YEARS, S/O. DECEASED SANKARAN, MANNULLIL PUTHENPURAYIL HOUSE, THIRUVANIYOOR KARA, KUNNATHUNAD TALUK. 2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY) KUNNATHUNAD, PERUMBAVOOR. 3. THE VILLAGE OFFICER, THIRUVANIYOOR VILLAGE, KUNNATHUNAD TALUK. ADV. SRI.V.J.JOSEPH SRI.M.C.JOHN FOR R1 GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY,Ag.C.J. & V.GIRI, J -------------------------------- W.A.2428/2005 ----------------------------- Dated this 12th day of January, 2009 JUDGMENT V.Giri, J The first respondent in Writ Petition No.4976/1996 is the appellant herein. Writ petition was filed challenging Ext.P1 notice of demand issued by the Welfare Fund Inspector and Ext.P3 notice of attachment issued under the Revenue Recovery Act. The principal ground of challenge in the writ petition was that the recovery of amounts due from the writ petitioner was barred under Article 113 of the Limitation Act. Learned single Judge proceeded to hold that the demand made was beyond three years from the date on which the amounts fell due and that therefore, it was time barred. Consequently on the ground that the recovery is barred by limitation, the impugned demands were quashed. It is aggrieved thereby that the present appeal has been filed. W.A.2428/2005 2 2. Writ petitioner was a contractor of Toddy Shop No.46 of Mamala Range for the year 1987-88. Advance contribution had to be remitted under the Toddy Workers Welfare Fund Act. It seems that some amounts were paid. But the entire amounts were not remitted. On 10.11.1995, petitioner received a notice of demand for an amount of Rs.20,344 + interest and collection charges stating that the amounts due from the petitioner under the Toddy Workers Welfare Fund Act was originally determined as per order dated 10.4.1989, that the petitioner remitted an amount of Rs.9,468/- alone and that the balance amount of Rs.20,344/- was due. According to the petitioner, the demand made under Ext.P1 followed by Ext.P3 attachment notice under the Revenue Recovery Act, was barred by limitation. It was contended that if the amounts fell due by an order of determination passed on 10.4.1989, then recovery should have been effected within three years from the said date, under Article 113 of the limitation Act, that since it was not done, the recovery has become barred by limitation. This contention was W.A.2428/2005 3 accepted by the learned Judge and the writ petition was allowed. The Inspector of the Welfare Fund Board challenges the same. 3. We heard learned counsel on either side. 4. Learned counsel for the appellant contended that the view taken by the learned single Judge that the debt has become time barred is unsustainable. That the learned single Judge should have found that in terms of Section 9 of the Toddy Workers Welfare Fund Act, the amounts due under the Act assumes the character of public revenue due on land. Consequently it is liable to be treated as dues to the Government. Longer period of limitation is available insofar as Government dues are concerned. Insofar as the amounts due to the Government is concerned, the period of Limitation would be thirty years instead of three years as per Article 112 of the Limitation Act. Learned counsel for the writ petitioner submitted that amounts due to the Toddy Workers Welfare Board cannot be treated as W.A.2428/2005 4 amounts due to the Government. Therefore, the period of limitation available is only three years under Article 113 of the Limitation Act. 5. Learned counsel for the petitioner also places reliance on the judgment of the Supreme Court in State of Kerala v. V.R.Kalliyanikutty (1999 (2) KLT 146 (SC), wherein the Court held that the Revenue Recovery Act does not create any new right. It merely provides a process for speedy recovery of moneys due. The persons claiming recovery, cannot claim recovery of amounts which are not legally recoverable, merely by taking recourse to the provisions of the Revenue Recovery Act. 6. Learned Judge of this Court in Baby v. State of Kerala & Others (1981 KLT, 510) observed that the money due under the Toddy Workers Welfare Fund Act is not public revenue due on land. But the object of the R.R.Act is to recover not only public revenue due on land but also all other amounts declared to be recoverable W.A.2428/2005 5 under the Act and that the money due under the Welfare Fund Act is of that character. A Division Bench of this Court in Subhadra v. State of Kerala & Others (AIR 1995 (Ker) 245) went on to hold that there cannot be any doubt regarding the applicability of the provisions contained in the R.R.Act regulating recovery under that Act for recovery of amounts due under Section 9 of the Welfare Fund Act. It was also held that from Section 9 of the Welfare Fund Act, it is clear beyond doubt that the amount due under that Section is statutorily declared to be recoverable as land revenue and as such can be recovered through any of the modes prescribed under the R.R.Act. 7. In Kerala Motor Transport Workers Welfare Fund Board v. William Raynold (2004 (3) KLT 1083), a Division Bench of this Court considered the impact of Section 10 of the Motor Transport Workers Welfare Fund Act. Division Bench held that Section 10 of the said Act provides that the arrears due from an employer under the Act could be recovered in the same W.A.2428/2005 6 manner as an arrear of public revenue due on land. It was specifically held that when Section 10 declares that the arrears due from an employer under the Act could be recovered in the same manner as arrears of public revenue due on land, it follows that all the provisions of the R.R.Act would become applicable. Division Bench therefore, went on to hold that the arrears due from the employer under the said Act is arrears of public revenue due on land and it could be recovered by resorting to the provisions of the R.R.Act. Division Bench indicated that this is the view that was taken in Baby v. State of Kerala & Others (1981 KLT 510). 8. We are in respectful agreement with the view expressed by the Division Bench in Kerala Motor Transport Workers Welfare Fund Board v. William Raynold (2004 (3) KLT 1083). We take note of the fact that Section 9 of the Toddy Workers Welfare Fund Act is in pari materia with Section 10 of the Motor Transport Workers Welfare Fund Act. We are of the view that Section 9 of the Act, by a fiction declares that the W.A.2428/2005 7 amounts due under the Act are liable to be treated as arrears of land revenue. Thus, by virtue of the declaration made under Section 9 of the Act, amounts which are otherwise not land revenue stricto sensu are deemed to be land revenue and recoverable as such. Thus, the period of limitation applicable in relation to the amounts due under the Act will be the period prescribed in relation to the amounts due to the Government. If that be so, the entry applicable in this behalf in relation to amounts due under the Act, would be Article 112 of the Limitation Act, and not Article 113 of the Act. Thus, the longer period of limitation prescribed under the former namely thirty years would be available in relation to the amounts due under the Act, by virtue of Section 9 of the Toddy Workers Welfare Fund Act. In that view of the matter, it is clear that the proceedings initiated in the year 2005, evidenced by Exts.P1 and P3, would not be barred by limitation. We are unable to sustain the findings of the learned single Judge. W.A.2428/2005 8 9. Learned counsel for the writ petitioner submitted that in the facts and circumstances of the case, it would not be equitable on the part of the Board to recover interest from the defaulter because there was nothing which stood in the way of the requisitioning authority taking steps immediately after the passing of the order of determination. We are inclined to accept the submission and we are of the view that it would not be equitable on the part of the Board, in the facts and circumstances of the case, to mulct the writ petitioner with the liability for interest in spite of the fact that there were obviously no factors which stood in the way of the Board taking steps for recovery of amounts stated to be due under the Act, immediately after the passing of the order of determination. Though the Board has taken up a contention that a notice of demand was issued on 10.4.1989, there are no materials to substantiate the said contention. In the result, we are inclined to hold that the liability of the writ petitioner would be restricted to the principal amount shown in Ext.P1. W.A.2428/2005 9 10. For all the reasons mentioned above, Writ Appeal is allowed. Judgment of the learned single Judge is set aside. It is declared that the Board would be entitled to recover the principal amount shown in Ext.P1 notice of demand. But the Board shall not take steps to recover any amounts by way of interest on such principal amount. Writ petitioner shall be given two months time from today to pay the amount demanded under Ext.P1. If the amounts are not paid within two months, it will be open to the Board to continue with the recovery steps. J.B.KOSHY, Acting Chief Justice V.GIRI, Judge mrcs