IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 4932 of 2008(K) ------------------------------------- PETITIONER: ------------------- K.MOHAMMED BASHEER DEPUTY COLLECTOR (RETIRED), RESIDING AT BUNGLOWIL HOUSE, THEKKADA, VEMBAYAM P.O. THIRUVANANTHAPURAM-695 615. BY ADVS. MR.N.SUGATHAN, SMT.VARSHA BHASKAR MR.S.PRASANTH (AYYAPPANKAVU). RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. ADDITIONAL COMMISIONER OF LAND REVENUE PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-33. 3. THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. 4. THE TAHSILDAR, TALUK OFFICE NEDUMANGAD, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.4932/2008-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. FB(A) 6-20186/07 DTD. 24/07/2007 ISSUED BY THE R.2. EXT.P.2: COPY OF THE GRATUITY PAYMENT ORDER DTD. 06/08/2007 ISSUED BY THE ACCOUNTANT GENERAL. EXT.P.3: COPY OF THE LETTER DTD. 21/06/2007 OF THE R.3. TO THE PETITIONER. EXT.P.4: COPY OF THE CHALAN RECEIPT DTD. 24/07/2007. EXT.P.5: COPY OF THE LETTER NO. A1-2651/2007 (1) DTD. 06/07/2007 OF THE R.4. TO R.3. EXT.P.6: COPY OF THE LETTER DTD. 25/07/2007 OF THE R.3. TO THE R.4. EXT.P.7: COPY OF THE LETTER DTD. 29/06/2007 OF THE R.4. TO THE R.3. EXT.P.8: COPY OF THE LETTER DTD. 08/08/2007 OF THE R.4. TO THE R.3. EXT.P.9: COPY OF THE REPRESENTATION DTD. 15/11/2007 TO THE R.3. EXT.P.10: COPY OF THE LETTER DTD. 06/12/2007 OF THE R.3. TO THE R.4. EXT.P.11: COPY OF THE LETTER DTD. 19/12/2007 OF THE R.4. TO THE R.3. EXT.P.12: COPY OF THE LETTER DTD. 15/01/2008 OF THE R.4. TO THE R.3. EXT.P.13: COPY OF THE REPORT DTD. 19/04/2005 SUBMITTED BY THE VILLAGE OFFICER, VITHURA. EXT.P.14: COPY OF THE ORDER DTD. 31/03/2008 IN CMP.NO.1592/2008 OF JFMC-II, NEDUMANGAD. RESPONDENTS' EXHIBIT: EXT.R3.A: LIABILITY CERTIFICATE NO. FB4/20186/07. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 4932 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 13th July, 2009. J U D G M E N T The petitioner retired from service as a Deputy Collector on 28-2-2007. For some time, he worked as a Tahsildar in Nedumangad Taluk for the periods from 2-1-2004 to 2-4-2004 and 2-7-2004 to 13-8- 2006. At that time, some illegally transported river sand was seized. In order to protect the sand, it became necessary to shift the sand from the place from where it was seized to the Police Station concerned. For expenses for such shifting, the petitioner withdrew an amount of Rs.18,900/- from the cash chest and sent the same for payment to the Village Officer concerned. By Ext. P13 report from the Village Officer to the Taluk Office, the Village Officer reported that the total expenses for the same was Rs. 21,000/- out of which Rs. 18900/- was received from the Taluk Office. The sand was later sold in court auction, which fetched an amount of Rs. 11,900/-. Originally, by Ext. P3, the difference between Rs. 21,000/- and Rs. 11,900/- was fixed as liability of the petitioner and the Additional Tahsildar in equal proportions at Rs. 4550/- each. The petitioner paid the same as per Ext. P4 chalan receipt. Subsequently, by Ext. P5, the petitioner was told that five items of liabilities have been fixed on the petitioner. The petitioner submits that out of the same, items 1, 2 and 3 have already been settled and in respect of the 4th item of Rs. 7,000/-, the same has to be recovered from one Sri. Joy in respect of which the petitioner has already filed a representation before the District Collector and in respect of the same, the petitioner may be permitted to pursue that representation. In this writ petition, the petitioner challenges only the last item, namely, Rs. 18,900/-. This Rs.18,900/- is the amount which the petitioner withdrew from the cash chest and entrusted to the Village Officer as expenses for shifting the sand to the Police Station. The reason for fixing it as the liability of the W.P.C. No. 4932/08 -: 2 :- petitioner is that the amount was withdrawn from the cash chest of the Taluk Office and the amounts withdrawn from the cash chest has to be replenished in cash itself. According to the petitioner, as explained by him in his reply affidavit, appropriate proposal in this regard has already been forwarded by him to the District Collector and the District Collector has not taken any steps in that regard. The petitioner would submit that even according to the respondents, the amount of Rs. 18,900/- has already been spent by the Village Officer, for which the Village officer has already forwarded Ext. P13 report. That being so, that amount cannot be fixed as liability of the petitioner. He would further submit that he is not liable for Rs. 4,550/- being the 50% of the difference between the amounts spent for protecting the sand and the amount recovered by sale of the sand. According to the petitioner, it is not because of any act of the petitioner that the State had to spend more amount than the amount recovered by sale of the sand, for protecting the sand. 2. A counter affidavit has been filed disputing the contentions of the petitioner. According to the 3rd respondent, the amount withdrawn from the cash chest has to be replenished in cash itself, which is the procedure prescribed for the same. Apparently, the petitioner has not replenished the cash in the cash chest. Therefore, he should answer for the same. The learned Government Pleader points out that although in the reply affidavit the petitioner has stated that he has forwarded appropriate proposal to the District Collector in that regard, he has not produced any material in support of the said contention. The learned Government Pleader also points out that in respect of Rs. 4,550/-, the petitioner has no prayer in the writ petition for refund of the same and he voluntarily paid the same. Therefore in respect of the said amount, no relief can be granted to the W.P.C. No. 4932/08 -: 3 :- petitioner is the contention of the learned Government Pleader. 3. Learned counsel for the petitioner submits that in the reply affidavit, he has specifically mentioned the file numbers in respect of the proposal he has forwarded to the District Collector to regularise the withdrawal from the cash chest and therefore the contention of the learned Government Pleader is not sustainable.. 4. I have considered the rival contentions in detail. 5. The facts are not in dispute. The fact that Rs. 18,900/- has been forwarded to the Village Officer as expenses for protection of sand and he spent the same for that purpose is admitted. It is also not disputed before me that it was the duty of the petitioner to take appropriate steps to safeguard the sand in question. The petitioner did exactly that, is also not disputed. The only allegation against the petitioner is that the amount withdrawn from the cash chest has not been returned, which is the procedure prescribed. The petitioner has not done anything to regularise the same, is the only contention. That being so, there is no contention by the respondents to the effect that on account of the same, the Government has suffered any loss whatsoever. If the same was irregular, no proceedings have been initiated against the petitioner for the same. That being so, I am of opinion that, that amount could never have been fixed as a liability of the petitioner. Therefore, fixation of the amount of Rs. 18,900/- as liability on the petitioner is clearly unsustainable. 6. Of course, it is true that the petitioner has not made any specific prayer in respect of Rs. 4,550/-, which he had already paid. The petitioner's contention is that in his anxiety to get his DCRG released, he paid the said amount since it was only Rs. 4,550/-. It was thereafter he has been mulcted with further liability of Rs. 18,900/- in respect of the same transaction. He would submit that W.P.C. No. 4932/08 -: 4 :- he is not responsible for the difference between the amount spent for protecting the sand and the sale value of the sand and he could not have known that the sand value would be less than that amount. I am of opinion that in this regard also, the petitioner is well founded in his submissions. It is not because of any default on his part that there was a difference between the amount spent for protecting the sand and the sale value of the sand. Therefore, the difference could not have been fixed as liability on the petitioner. Although no specific prayer in that regard has been made, I am of opinion that the petitioner could not have been mulcted with that liability also. Accordingly, I hold that the petitioner is not liable for either Rs. 18,900/- or Rs. 4,550/- sought to be recovered from the petitioner as liability from his DCRG. Orders impugned in that regard are quashed. Out of the amounts withheld from the DCRG due to the petitioner, the said amount of Rs. 18,900/- shall be released to the petitioner within one month from the date of receipt of a copy of this judgment. The amount of Rs. 4,550/- paid by the petitioner as per Ext. P4 shall also be refunded to the petitioner within the same period. It is made clear that in respect of other amount of Rs. 7,000/-, the petitioner would be free to pursue the representation he has already made to the District Collector. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/