IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 WP(C).No. 36411 of 2008(I) ------------------------------------ PETITIONER(S): ---------------------- 1. C.H. RAGHAVAN, S/O.CHATHU, AGED 68 YEARS PARTNER, DWARAKA TOURIST HOME, SULTHAN BATHERY, RESIDING AT GANAPATHI VILLA, KOTTAKUNNU, S.BATHERY, WAYANAD DISTRICT. 2. SURESH KUMAR, S/O.C.H. BALAN, AGED 42 YEARS, PARTNER, DWARAKA TOURIST HOME, S.BATHERY, RESIDING AT 'USHA NIVAS', S.BATHERY P.O WAYANAD DISTRICT. BY ADV. MR.GRASHIOUS KURIAKOSE RESPONDENT(S): ------------------------- 1. THE KERALA WATER AUTHORITY, P.H.DIVISION S.BATHERY, WAYANAD, REPRESENTED BY ITS EXECUTIVE ENGINEER. 2. THE ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H.SUB DIVISION, S.BATHERY. 3. THE DISTRICT COLLECTOR, WAYANAD. 4. THE TAHASILDAR (REVENUE RECOVERY) AMBALAVAYAL, S.BATHERY, WAYANAD DISTRICT. R3 & R4 BY GOVERNMENT PLEADER MR.BIJOY CHANDRAN R1 & R2 BY ADV. SMT.AMBIKA DEVI, SC, KWA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 36411/2008-I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROVISIONAL INVOICE CARD ISSUED BY THE 2ND RESPONDENT. EXT.P2: COPY OF THE NOTICE DATED 25/09/2004 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS. EXT.P3: COPY OF THE REPRESENTATION DTED 19/10/2004 FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. EXT.P4: COPY OF THE NOTICE DATED 24/01/2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS. EXT.P5: COPY OF THE OBJECTION DATED 03/02/2006 FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. EXT.P6: COPY OF THE NOTICE DATED 02/01/2007 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS. EXT.P7: COPY OF THE LETTER DATED 16/01/2007 SENT BY THE PETITIONERS TO THE 2ND RESPONDENT. EXT.P8: COPY OF THE REQUISITION DATED 12/10/2007 FORWARDED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXT.P9: COPY OF THE NOTICE DATED 07/12/2007 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS. EXT.P10: COPY OF THE JUDGMENT DATD 27/03/2008 IN W.P.(C). NO. 10305/2008 OF THIS HONOURABLE COURT. EXT.P11: COPY OF THE RECEIPT DATED 16/04/2008 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS. EXT.P12: COPY OF THE MEMORANDUM OF APPEL NO.1/2008 FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT DATED 16/04/2008. EXT.P13: COPY OF THE JUDGMENT DATED 21/05/2008 IN APPEAL NO.1/2008 ISSUED BY THE 1ST RESPONDENT. EXT.P14: COPY OF THE REPRESENTATION DATED 07/11/2008 FILED BY THE PETITIONERS BEFORE THE 3RD AND 4TH RESPONDENTS. EXT.P15: COPY OF THE MAHAZAR DATED 24/11/2008 PREPARED BY THE SPECIAL VILLAGE OFFICER, S.BATHERY. EXT.P16: COPY OF THE MAHAZAR DATED 24/11/2008 PREPARED BY THE VILLAGE OFFICER, KUPPADI RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ K.M.JOSEPH, J ........................................... WP(C).NO. 36411 OF 2008 ............................................ DATED THIS THE 16TH DAY OF MARCH, 2009 JUDGMENT The petitioners challenge Ext.P2, Ext.P4, Ext.P6 and Ext.P13 demand notices. Further declaration is also sought on the same line. Ext.P9 is also challenged, which is also a direction to restore the articles attached by Ext.P15 and P16 and to return Rs.40,000/- collected from the dealer. Petitioners owned a Tourist Home. It availed water connection. It was disconnected on 27.8.2003. It is the case of the petitioners that the demands relate to charges of having consumed water. First petitioner approached this court and he was advised to prefer statutory appeal and it was dismissed. 2. The principal issue that is raised is one of limitation. Learned counsel appearing for the petitioners submitted that period of limitation being three years, there cannot be recovery beyond three years. Smt Ambikadevi, learned counsel for the respondent, on the other hand, would submit that it is not barred by limitation. She would submit that under the Kerala Water WP(C) 36411/2008 2 Supply and Sewerage Act 1986(hereinafter referred to as the `Act'), Section 36 provides as follows:- “ Recovery of taxes, fees and other sums due:- (1) Any sum due to the Authority on account of any tax, fee, cost of water, cost of collection and disposal waste water, meter rent, penalty, damage or surcharge under this Act shall be recoverable as arrears of land revenue. 2. Nothing in sub-section(1) shall affect the power of the Authority to cut off in accordance with the regulations the connection of water supply in the event of non- payment by the consumer of any dues referred to in that sub- section”. 3. Learned counsel for respondent further submitted that WP(C) 36411/2008 3 this is pari materia with Section 9 of the Toddy Workers Welfare Fund Act and that interpreting the same, a Division Bench of this court in Inspector, Toddy Workers Welfare Fund Board V M.S.Vijayan and others (2009(1) Kerala High Court Cases 465) has taken the view that period of limitation is 30 years. The Division Bench, in the said case, held as follows. “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 amounts due under the Act are liable to be treated as arrears of land revenue. WP(C) 36411/2008 4 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 WP(C) 36411/2008 5 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”. 4. Of course, learned counsel for the petitioner would submit that Section 36 of the Act does not enable recovery beyond the period of limitation, which is three years, and states that he would submit that Division Bench was in error in making the observations as above. He pointed out that Article 112 is made applicable to dues to the water authority. Prima facie, Article 112 of the Limitation Act, a central legislation provides for a period of limitation in respect of suits filed by the government. The water authority is not “government”. Section 68 of the Revenue Recovery Act enables a recovery of all sums declared by any law for the time being in force to be recoverable as arrear of public revenue due on land or land revenue. The question may arise as to whether the fact that Section 36 of the Act makes the WP(C) 36411/2008 6 charges recoverable as arrears of land revenue would result in enlarged period of limitation. In view of the bench decision of this court, I dismiss the writ petition. K.M.JOSEPH, JUDGE lgk