IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 2356 of 2007(E) ------------------------------------ PETITIONER(S): ----------------------- SMT.SHERIFA BEEVI, EDUPADIKKAL HOUSE, KOTTAMKARA VILLAGE, KOLLAM DISTRICT. BY ADVS.MR.K.MANOJ CHANDRAN MR.P.R.AJITHKUMAR RESPONDENT(S): --------------------------- 1. THE REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHY NIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 4. 2. THE RECOVERY OFFICER, EMPLOYEES PROVIDENT FUNDS, BHAVISHYA NIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 4. 3. M/S.PRASHANTHI CASHEW COMPANY, MANGAD P.O. KOLLAM, REPRESENTED BY ITS PROPREITOR, B.MOHANA CHANDRAN NAIR. R1 & R2 BY ADV. MR.N.N. SUGUNAPALAN, SC, P.F., SMT.T.N.GIRIJA, SC,EPF ORGANISATION . R3 BY ADV. MR.SAJU.S.A THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.2356/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SALE DEED NO.5299/1963 OF SUB REGISTRY, KUNDARA. P2:- COPY OF THE RECEIPT EVIDENCING PAYMENT OF BASIC TAX OF THE PROPERTY OF THE PETITIONER FOR THE YEAR 203-04. P3:- COPY OF THE PROCLAMATION OF SALE DTD. 13.11.06. P4:- COPY OF THE LETTER DTD. 26.12.06. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.2356 OF 2007(E) -------------------------------------------------- Dated this the 9th day of October, 2009 J U D G M E N T Challenge in this writ petition is against Ext.P3. 2. According to the petitioner by Ext.P1 sale deed she had purchased 13 cents of land situated in Sy. No.348/04 of Kottamkara Village in Kollam District. It is stated that since then the petitioner has been in possession and has been paying basic tax in respect of the property. According to the petitioner, the property covered by Ext.P1 sale deed was leased out to one M/s. Asumo Cashew Co. from the year 1970, for conducting their frying unit in the building situated therein. This arrangement continued till 1999 when a fresh lease deed was executed in favour of the 3rd respondent leasing out the land and building for conducting a frying unit of the 3rd respondent. 3. It is stated that by Ext.P3, proclamation of sale was issued by the respondents proposing to sell 33 cents of land which included the land belonging to the petitioner and WPC.No.2356/07 :2 : covered by Ext.P1 sale deed referred to above. It was there upon that he filed this writ petition. 4. The contention raised by the counsel for the petitioner is that if at all any default has been committed in paying dues under the Employees Provident Fund and Miscellaneous Provisions Act, such default was committed by the 3rd respondent, employer and that for realization of the said defaulted amount property belonging to the petitioner, the land lord, cannot be proceeded against. On the other hand, the respondents have filed a statement. In the statement they also accept the position that the property in respect of which Ext.P3 sale proclamation was issued, was held by the 3rd respondent under lease. However, it is also stated that in the lease deed said to have been executed in 1999 petitioner does not appear to be a party. It is also the case of the respondent that in view of the provisions contained in Section 17B of the Employees Provident Fund and Miscellaneous Provisions Act read with the the definition WPC.No.2356/07 :3 : 'employer' contained in Section 2(e), the petitioner's property is liable to be proceeded against for the default committed by the 3rd respondent. Section 17B reads as under. “Where an employer in relation to an establishment, transfers that establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay the contribution and other sums due from the employer and any provision of this Act or the Scheme or the (pension Scheme or the Insurance Scheme), as the case may be, in respect of the period up to the date of such transfer. Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.” 5. A reading of Section 17B shows that, if an employer transfers his establishment by sale, gift, lease or licence or in any manner, what so ever, the employer and the person who is the transferee shall jointly and severally be liable to pay the amount under the Act. Therefore, the transferor WPC.No.2356/07 :4 : provided under Section 17B must be the employer who has committed default and only if such a defaulter transfers his establishment, both transferor and the transferee are liable. In this case, the said section can have no application for the reason that first of all the employer is the lessee and the transfer if at all is by way of lease in favour of the employer and not by the employer. In such a case Section 17B can be no application. 6. In so far as the definition of employer is concerned in my view that also cannot cover a person like the petitioner, since, the employer in relation to an establishment is either owner or occupier including the agent of such owner of occupier. The employer therefore can only be the owner or his representatives and the petitioner, the land lord, cannot be taken as the occupier or the agent of the owner for the purpose of Section 2(e) of the Act as well. WPC.No.2356/07 :5 : 7. A reading of Ext.P3 shows that proceedings have been initiated, in respect of 33 cents of land and the petitioner claims ownership only in respect of the 13 cents of land, covered by Ext.P3. Therefore It is directed that it will be open to the petitioner to produce the title deed and other documents to prove ownership over any portion of the property covered by Ext.P3 before the 2nd respondent in which event the 2nd respondent shall consider the documents produced and pass orders excluding such portion of the petitioner's property in respect of which petitioner has title. Needless to say the aforesaid direction in the judgment will not govern the properties other than what is owned by the petitioner. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WPC.No.2356/07 :6 :